Disseisor the Disseisee entereth in the life of Tenant in tail who afterwards dieth the warranty works nothing for the cause aforesaid And also he put this Case Tenant in tail of Land grants a Rent-charge in Fee and an Ancestor collateral releaseth to the Grantee with warranty and dieth the Tenant in tail dieth now the issue is bound but if Tenant in tail dieth before him who maketh the Release now the Rent is determined by the death of Tenant in tail and then the warranty cannot attach upon it At another day the Case was moved and conceived in these words scil Tenant for life the Remainder in tail Tenant for life leaseth for years a Recovery is had against him in the Remainder in tail living Tenant for life the Recoverors enter and oust the Lessee for years the Son and Heir of him in the Remainder in tail releaseth with warranty to him to whom the Recoverors have assured the Lands the Lessee enters he against whom the Recovery was had dieth the Releasor dieth c. It was holden that the Entry of the Lessee before that the warranty had attached upon the possession which passed had avoided the warranty And the Lord Anderson conceived That the Recovery should not prejudice the issue in tail but that the issue shall Fauxifie the same And if Tenant in tail be disseised and so disseised suffereth a common Recovery his issue shall not be barred quod fuit concessum per omnes And afterwards another matter was moved scil That the Release is pleaded to be made to Lincoln College by the name of Custodi sociis Scholaribus Lincolniensis Collegii in Oxonia where the true name of the College as is confessed by the Record in the Plea pleaded is Custos sive Rector Socii Scholares Lincolniensis Collegii in Oxonia c. It was adjourned See this Case reported 3 part Lincoln College Case LXXXIII Hall and the Bishop of Bath 's Case Mich. 32 Eliz. In the Common Pleas. HAll brought a Quare Impedit against the Bishop of Bath and others The Incumbent pleaded Quod ipse nihil habet nec habere clamat c. nisi de praesentatione Georgii Sidenham militis not named in the Writ and demanded Iudgment of the Writ upon which the Plaintiff did demur in Law And it was argued by Drew Serjeant for the Plaintiff That the Writ was well brought without naming the Patron for if a Quare Impedit be brought against the Patron and Incumbent and the Patron dieth 1 Leon. 45. pendant the Writ the Writ shall not abate 9 H. 6. 30. It might be that the Plaintiff did not know nor could tell who presented the said Incumbent but he findeth the Incumbent a Disturber by his Incumbency and if of necessity such Patron ought to be named then if such a Vsurper should die before the Writ brought he which hath cause of Action should be remediless And by Anderson and Periam the Writ is good enough for the reason aforesaid And Anderson put this case If A. wrongfully by Vsurpation doth present and his Clark is received and afterwards A. having gained the Patronage grants it over to B. Against whom shall the Quare Impedit be brought Walmsley Against B. which Anderson doubted LXXXIV Hughe 's Case Mich. 32 Eliz. In the Common-Pleas IN a Formedon the Writ was That A. Dedit Aliciae filiae suae and to J.S. and to the Heirs of their two bodies begotten and it was shewed in abatement of the Writ That the name of the Wife is put before the name of the Husband To which it was said by the Court that if such a Writ be brought against the Husband and Wife and the name of the Wife be put before the name of the Husband the Writ shall abate and if in the Case at Bar it had appeared That the Donees at the time of the Gift were Husband and Wife upon such a matter disclosed the Writ should abate but that doth not appear plainly to the Court. LXXXV Mich. 32 Eliz. In the Common-Pleas NOTE It was holden by the Court 1 Cro. 567. 3 Cro. 224. Post 189. That if a Writ of Dower be brought against an Infant who loseth by default at the Grand Cape that he may reverse the same by a Writ of Error but where an Infant appeareth by Guardian and afterwards loseth by default there he shall never avoid it for if any default be in the Guardian the Infant shall recover against him in a Writ of Deceit And afterwards the Iudgment in the first case was reversed LXXXVI Mich. 32 Eliz. In the Exchequer-Chamber NOTE In the Exchequer-Chamber before the Lord Chancellour The two chief Iustices and the chief Baron a Writ of Error was cast upon a Iudgment given in the Court of Exchequer and it was agreed Quod propter absentiam Dom. Thesaurarii Angliae They ought not nor could receive the said Writ and the Statute of 31 Eliz. doth not help the matter for that extends but to discontinuances which before the Statute many times hapned for the not coming of the Chancellour or Treasurer and not to give Conusance in a Writ of Error in the absence of the Treasurer c. LXXXVII Lacy and Fisher 's Case Mich. 32 Eliz. In the Common-Pleas IN a Replevin by Lacy against Fisher The Defendant pleaded that the place where c. is called Spicold and holden of the Manor of Easthall by certain Rent and made Conusance as Bailiff of the Lord of the said Manor and issue being joined hereupon It was tried by the Iury of the Visne of Spicold and it was moved in arrest of Iudgment that the issue was mis-tried For the Visne ought to have been of Spicold and Easthall also Web and Richmond's Case And a Case was cited to have been adjudged accordingly betwixt Webb and Richmond M. 31 Eliz. in the same Court. LXXXVIII Corbet 's Case Mich. 32 Eliz. In the Common-Pleas THE Case was That an Action of Debt was brought by original Writ against an Administrator in another County than where the Administrator was dwelling and before notice of that suit he paid divers other debts of the Intestate due by specialties so as he had not Assets to pay the debt in demand having Assets at the day of the Teste of the original and now the Defendant appearing pleads the same special matter and concluded And so nothing remained in his hands And it was holden per Curiam to be a good Plea See 2 H. 4. 21 22. LXXXIX Sir William Pelham 's Case Pasch 31 Eliz. In the Exchequer 1 Co. 41. THE Case short put was this A. Tenant for life of a Messuage c. the remainder in tail to B. with divers remainders over A. by Deed indented and enrolled bargained and sold the Messuage c. so conveyed to Sir William Pelham in Fee who afterwards suffered a common Recovery thereof in which A. is vouched and so a common Recovery is had and executed and
being void he presents he may repeal his presentment and he vouched divers presidents of Grants of the King of such lands to hold of him as of his Dutchy and sometimes of others And the King by his Dutchy seal may give lands in Mortmain and the King under his Dutchy-seal hath made divers Corporations within his Dutchy And although this Rent be a new thing never parcel of the Dutchy yet because it is issuing out of the Dutchy lands and reserved thereout shall be of the same nature and accounted parcel of the possessions of the Dutchy If before the Statute of West 3. one seised of lands on the part of his mother made a Feoffment in Fee Tenend by such services and died the Seignory should go to the heir on the part of his mother and should be descendable as the land it self in lieu of which it came And if Tenant in tail now after the Statute of 32 H. 8. makes a Lease for years according to the Statute rendring Rent to him and his heirs it shall be expounded such heirs which are inheritable to the land according to the entail Manwood chief Baron Demanded of Plowden this Question The King makes a Feoffment in Fee of lands of his Dutchy Is the same a matter of Record who answered yes Manwood Truely no for then there needed not any livery Egerton Solicitor argued to the contrary and he argued much upon the Statute of 1 H. 4. and 1 H. 7. of the separation of the Dutchy of Lancaster from the Crown which see in the Comment 215. in the Case of the Dutchy of Lancaster by which Acts the possessions of the Dutchy were devested out of the body Politick of the King and vested in his body natural and are as their corporal holding in the King as they were in the Duke of Lancaster being a Subject who if he had made a Feoffment the Feoffee should not hold of him but of the King Ergo so shall it be in the case where the King himself makes a Feoffment and he cited a Case put in the end of the Dutchy Case 4 Eliz. 223. The Queen made a Feoffment of lands of the Dutchy out of the County Palatine to hold of her in Capite the Feoffee shall hold of her in Capite as of her Crown of England The case went farther the King after this Feoffment granteth the Fee-farm the Question is If the Rent reserved upon this Feoffment shall pass by such grant or not and he said That this Rent is not parcel of the Fee-farm but rather a collateral charge upon the land for in all cases where there is a Tenure expressed in fait or implyed in Law there the rent reserved after shall not be parcel of the Tenure but a Rent in gross by it self As in our case Tenend in feod firm makes a Tenure therefore the Reddend after shall not make the sum reserved parcel of it 33 E. 3. Annuity 52. before the Statute of Quia Emptores terrarum a man makes a Feoffment in Fee Tenend de Dominis Capital rendring the rent of 20 l. that Rent is a Rent in gross and not parcel of the Tenure King E. 6. granted to Cranmer Archbishop and his heirs Tenend by the fifth part of a Knight's-fee Reddend 6 l. per ann Cranmer in Feoffment in Fee to the use of himself for life the remainder to the use of his son in tail the remainder to the use of the right heirs of Cranmer made a Fee who is attainted of Treason by which the remainder to his right heirs Escheats to the King and so the Seignory is extinct but it was adjudged That the Rent was in esse and not extinct by the Escheat of the remainder for it was not parcel of the Seignory So here in our case Another matter was moved If this Rent being a new thing created de novo and not parcels of the possessions of the Dutchy 1 H. 4. nor 1 H. 7. shall be accounted in Law in the right of the Crown or of the Dutchy and if of the Crown then it cannot pass by the Dutchy-seal and the Statute of 1 H. 4. speaks of such Lands and Tenements which were to his Ancestors Dukes of Lancaster but this Rent never was in them c. and the Queen cannot enlarge the possessions of her Dutchy by her own Act and therefore if J. S. being Tenant in Fee-simple be impleaded in a Praecipe quod reddat and saith that he holdeth for life the remainder to the King in Fee in the right of his Dutchy now this remainder is vested in the King in the right of his Crown and not in the right of his Dutchy for it is onely an Estoppel So the Villein of the King in the right of his Dutchy purchaseth lands the King seiseth he shall have the lands in the right of his Crown and not in the right of the Dutchy If the King giveth Common out of his lands parcel of his Dutchy and afterwards makes a Feoffment in Fee of the lands out of which the Common is granted and afterwards the Commoner dieth without heir the King shall have the same in the right of his Crown and not in the right of the Dutchy So although the rent doth follow the nature of the lands out of which it is issuing yet it is not so to all intents and he said That by the Statute of 2 3 Phil. Ma. the King could not enlarge the possessions of the Dutchy and therefore by the said Act authority is given for to annex possession unto the Dutchy by Letters Patents And there is another clause in the said Statute That if any part of the possessions of the Dutchy have been aliened or granted unto any subject and are reverted to the Crown by Escheat attainder forfeiture purchase c. they shall be deemed and accepted parcel of the Dutchy which case proves That if the King makes a Feoffment of such lands the same is a Tenure in chief for if it were a Tenure of the Dutchy then upon Escheat it should be parcel of the Dutchy again without the help of that Statute Now this Rent being a Rent in gross and not parcel of the Seignory Reddendo Domino Regi haeredibus successoribus suis aut Domino aut Dominis feodi when the King grants the Seignory to the Lord Audley it hath been moved that it was in the Election of the Feoffee to pay the Rent to the King or to the Lord Audley but that is not so for although the Law be so betwixt Subjects yet in case of the King it is otherwise for the King shall never be over-reached by an Election and therefore he shall pay the Rent to the King. It was adjourned CLXXXV The Executors of Sir William Cordel and Clifton 's Case Hill. 18 Eliz. In the Common Pleas. 3 Len. 59. THE Case was The Earl of Westmerland seised of a Manor whereof the Demeans were usually let for three lives by Copy
according to the custome of the Manor granted a Rent-charge to Sir William Cordel 2 Roll 157. Pro concilio impendendo for the term of his life and afterwards conveyed the Manor to Sir William Clifton in tail The Rent is behind 12 Brownl 208. Sir William Cordel dieth Sir William Clifton dieth the Manor descends to John Clifton who grants a Copihold to Hempston the Executors of Sir William Cordel distrain for the Rent It was agreed by the whole Court Antea 109. That the Copyholder should hold the land charged Windham Iustice It hath been adjudged that the wife of the Lord shall not be endowed against the Copyholder Dyer 270. which Periam granted but gave the reason of it for the Title of the Dower is not consummated before the death of the husband so as the Title of the Copyholder is compleated before the Title of Dower More 94. but the Title of the Grantee of the Rent is consummated before the Dower Fenner conceived That the Executors could not distrain upon the possession of the Copyholder and he argued that this case is not within the Statute of 32 H. 8. of Wills For by the preface of the said Statute he conceived That the said Statute did extend but to those cases for which by the Common Law no remedy was provided but in this case the Executors by the Common Law might have an Action of debt ergo But Periam and Windham contrary For this Statute doth intend a farther remedy for that mischief scil not onely an action of debt but also distress and avowry See the words of the Statute Distrain for the arrearages c. upon the lands c. which were charged with the payment of such rents and chargeable to the Distress of the Testator or in the seisin or possession of any other person or persons claiming the said lands onely by and from the same Tenant by purchase gift or descent in like manner and form as their Testator might or ought to have done in his life time And it was moved by Fenner That here the said land charged doth not continue in the seisin or possession of the Tenant and here Sir John Clifton was issue in tail and therefore he doth not claim onely by the father but per formam Doni and therefore he is not liable therefore neither his Copyholder Shuttleworth Serjeant contrary That Sir John Clifton was chargeable and he claims onely from them who immediately ought to have paid the Rent and the Copyholder claims by purchase from Sir John Clifton so he claims from Sir William Clifton the Tenant c. although he doth not claim immediately from him For if the Tenant ought to have paid it and dieth and the land descendeth to his heir and the Heir maketh a Feoffment in Fee the Feoffee shall be charged within this Statute although he doth not claim immediately so where land descends from the Tenant which ought to have paid it and so from Heir to Heir The Statute of 1 R. 3. wills that all grants c. shall be good against the Donor his Heirs c. claiming onely as Heirs to Cestuy que use c. Yet if Cestuy que use granteth a Rent-charge and the Feoffees are disseised the Grant shall be good against the Disseisor and yet he doth not claim onely by Cestuy que use And although Sir John Clifton be Tenant in tail and claims per formam Doni Yet because the Estate tail cometh under the Estate of him who grants the Rent he shall be subject to the charge And this Statute extends not onely to him who claims by the Tenant but also to the Heir of him who grants c. And by Windham and Rhodes The Copyholder doth not claim onely by the Lord but he claims also by the custome but the custome is not any part of his Title but onely appoints the manner how he shall hold c. The possession continues here in Sir John Clifton for the possession of his Copyholder is his possession so as if the Copyholder be ousted Sir John Clifton shall have an Assise And so the strict words of the Statute are observed for the seisin and possession continues in Sir John Clifton who claims onely by Sir William Clifton who was the Tenant in demean who ought to pay the Rent But Fenner said to that that the seisin and possession intended in the Statute is the very actual possession scil Pedis dispositio and such a possession in which the distress may be taken and that cannot be taken in a Freehold without an actual possession CLXXXVI 19 Eliz. In the Common-Pleas 3 Len. 65. A. Seised of land in Fee by his Will in writing granted a Rent-charge of 5. l. per an out of it to his younger son towards his Education and bringing up in Learning and if in pleading the Devisee ought to aver that he was brought up in Learning was the Question And it was holden by Dyer Manwood and Mounson that such averment needs not for the Devise is not conditional and therefore although he be not brought up in Learning yet he shall have the Rent and the words of the Devise are Towards his bringing up and he well knew that 5 l. per an would not nor could extend to maintain a Scholar in Learning Dy. 329. a. in diet apparel books c. and this Rent although it be not sufficient to such purpose yet he shall have it And Dyer said That such a case was here Two were bound to stand to the award of certain persons who awarded that the one of them should pay unto the other 20 s. per an during the term of six years towards the education and bringing up of such a one an Infant and within the two first years of the said term the Infant died so as now there needed not any supply towards his education yet it was adjudged that the yearly sum ought to be paid for the whole term after for the words toward his education are but to shew the intent and consideration of the payment of that sum and no word of condition c. CLXXXVII West and Stowel 's Case Mich. 20 Eliz. In the Common Pleas. 1 Cro. 870. Townsend 17. 1 Roll 28. More 549. Sty 353. a. IN an Action upon the Case by Thomas West against Sir John Stowell The Plaintiff Declared That the Defendant in consideration that the Plaintiff promised to the Defendant that if the Defendant shall win a certain match at shooting made between the Lord of Effingham and the Defendant then the Plaintiff should pay to the Defendant 10 l. and promised to the Plaintiff That if the said L. Effingham shall win the same match of the Defendant that then the Defendant would pay to the Plaintiff 10 l. And farther declared That the Lord Effingham won the match for which the Action is brought It was moved that here is not any sufficient consideration for the promise of the Plaintiff to
Case 33 E. 3. Annuity 52. before the Statute of Quia Emptores terrarum a man makes a Feoffment in Fee Tenend de Dom. Capital Feod c. Reddend 10 s. Rent here because that the Tenure was reserved Capital Dom. feodi illius this Rent reserved is not parcell of the Tenure but a Rent in gross King Edward the sixth gave certain Lands to Cranmer Archbishop of Canterbury Tenend by the fifth part of a Knight's Fee Reddend inde 6 l. per ann Cranmer made a Feoffment in Fee to the use of himself for life and afterwards to the use of his eldest son in tail the remainder to the right heirs of Cranmer who is attainted of Treason by which the remainder in Fee escheated to the King by which the Seignory is gone But it was adjudged that notwithstanding that escheat the Rent did remain for the Rent was not parcel of the Seignory Now this Rent being a thing newly created and not parcel of the possessions of the Dutchy in 1 H. 4. nor ever descended from any Ancestor of the King being Duke of Lancaster shall be accounted to be in the King in the right of his Crown and so cannot pass by the Dutchy-seal See the said Statute of 1 H. 4. and the King cannot enlarge the said Dutchy nor the possessions thereof beyond the possessions which were of the Dutchy at the time of the making of the said Acts As if J. S. seised in Fee is impleaded and he saith that he holds the Lands in demand for life the remainder to the King in the right of his said Dutchy now the said remainder is vested in the King not in the right of the said Dutchy but in the right of his Crown The Villain of the King in the right of his Dutchy of Lancaster purchaseth Lands the King seizeth he shall be seised thereof in the right of his Crown and not of the Dutchy The King grants Common out of certain Lands parcel of his said Dutchy and afterwards makes a Feoffment of the said Lands to another the Grantee of the Common dieth without heir so as the Common escheats to him now he shall have the Common in the right of the Crown and not of the Dutchy so although it is said That the Rent shall follow the nature of the Land out of which c. yet the same is but to some intents and not to every intent See the Statute of 2 and 3 Phil. Ma. cap. 20. by which it is enacted That all the Lands which have been granted or severed from the Dutchy to any person or persons and after such grant have come or reverted to the King in possession reversion or remainder or otherwise by attainder escheat forfeiture c. shall for ever be united to the said Dutchy and shall be adjudged and esteemed as part and member of the same which proves that such Lands were not holden of the King as Duke of Lancaster but as King for if they had been holden of the Dutchy upon the escheat they should be parcel of the Dutchy again without help of that Statute See the special Reservation Reddendo Domino Regi haeredibus suis aut illi cui de jure reddi debet c. Now when the King grants the Seignory to the Lord Audley it was in the Election of the Ter-tenant to whom he would pay the Rent if it had been in the Case of a common person but it is otherwise in the Case of the King As if A. holdeth of two several Lords by owel Feoffment and dieth his heir within age the Lord which first gets the Ward shall have him but in the Case of the King it is otherwise Plowden The King is not bound by the Statute of West 3. But in this Case in the making of this Feoffment with this Tenend Reddend the Feoffee shall hold of the King as of his Dutchy for all grants of the King savour of the person of the King and then his Prerogative wrapt in the person shall guide the same and see the Statute of West 3. extends to all who make Feoffments Tenend de Feoffatoribus but the King is not Tenant to any one And if the King be seised of an Advowson in the right of his Dutchy and the same becomes void and the King presents to the same he may repeal his presentation and he vouched divers precedents of Patents made to many great Lords to hold of the Dutchy and also to hold of others And the King by his Dutchy-seal may give Lands in Mortmain And he argued That this Rent although newly created yet in so much as it came and accrued in respect of the Land which was parcell of the Dutchy it should be accounted also parcel of the Dutchy as if before the Statute of West 3. A. seised of Lands in Fee of the part of his father makes a Feoffment in Fee Tenend by such services c. the same Seignory shall go to the heirs of the part of the father in lieu of which the Seignory is come Tenant in tail after the Statute of 32 H. 8. makes a Lease for years according to the said Act rendring Rent to him and his heirs it shall be intended heirs in tail It was adjourned CXCVIII. Forster and Walker 's Case Pasch 26 Eliz. In the King's-Bench IN an Ejectione firmae by Foster against Walker the Case was 3 Cro. 106. Shepherd's Touch-stonâ— of Conveâ—…ances 416. That Richard Meager was seised of a house in London and 6 E. 6. he devised the same to his Wife for life the remainder to John his son in tail the remainder to the Master and Wardens of the Cordwaynors in London and died the Wife entred and died John died The Master Wardens and Commonalty of the Cordwaynors entred and leased the Plaintiff upon whom the heir general of the Devisor did enter The onely question was inasmuch as the Cordwaynors of London are incorporated by the name of Master and Wardens and Commonalty of Cordwaynors If this devise made to them by the name of Master and Wardens of the Cordwaynors of London be good or not It was argued by Daniel that the Devise by the manner was good enough and he insisted much upon the favour which the Law gives to Wills and to Legatees in the Devises and construction of them even in Devises and Grants to Corporations and as to Grants to Corporations he cited the Case of the Dean and Chapter of Norwich Decanus Capitulum sanctae individuae Trinit and they make a Lease leaving out these words sanctae individuae and yet held the Lease was good notwithstanding that for the words left out are not words of substance of the name but for the beauty and ornament of it But in the Case of Devise if the name be mistaken in matter of substance yet if upon the Devise the intent of the Devisor sufficiently appeareth it is good enough for the intent of the Devisor shall guide the Devise and
made the Reservation and he relied much upon the last Reason urged by Harper upon the Statute of 27 H. 8. that this was limited to the Executors Co. 13. Rep. and not to him who limited it and therefore the possession shall be executed to the Executors to whom the use was limited and this term shall not be Assets in the hands of the Executors And he said That he had seen a Record 2 H. 8. setting forth That A. having Feoffees to his use devised that his Feoffees should sell his Lands who did accordingly now the money coming by the sale shall be Assets c. but it is not so limited in our case therefore it shall not be Assets A Lease is made to A. for life the Remainder to the right Heirs of B. B. purchaseth the Estate of A. the Estate in Remainder is not executed for it is not conveyed by the Grant of the first Grantor but by the Act of another person after the Grant. A Lease for life to A. the Remainder to a Feme sole for years they entermarry Waste is committed the Lessor brings an Action of Waste he shall recover as well the Estate for years as for life A. Leaseth unto B. for life the Remainder unto the Executors of A. for years the Remainder over in Fee to a stranger the Remainder for years is good for the Lessor cannot limit such an Estate to himself and the Executors shall take the Estate as Purchasors and the term shall be in abeyance untill the death of A. There was a case before the Lord Brook in the time of Queen Mary viz. A Lease was made for life Proviso that if the Lessee dieth within the term of sixty years that the Executors shall have the Lands as in the Right and Title of the Lessee pro termino totidem annorum which do amount to the number of sixty years to be accounted from the said Indenture The Opinion of the Iustices of the Common Pleas upon the Case was That the term was not in the Lessee for life So this future term in the principal Case was not in Tho. Cranmer But see that Case cited by Dyer reported by himself 4 Ma. 150. and there the opinion of the Court was That the same was not a Lease but a Covenant And afterwards in the principal Case Iudgment was given for the Plaintiff That the future term was not forfeited by the Attainder of Cranmer VIII 7 Eliz. In the Common Pleas. THE Case was Dyer 317. b. 318. a. J. S. is seised of a Close adjoyning to the Close of J. D. and J. S. ought to enclose against J. D. J. S. leaseth his Close to another for years rendring Rent J. D. puts in his cattle into his own Close who for want of enclosure escape into the Close of J. S. and before that they be levant and couchant Distress for Rent J. S. distrains them for his Rent It was said by Manwood Iustice that the distress was not well taken Doctor Student 150. 1 Inst 476. Brown 1 part 170. Roll Tit. Distress 1 part in toto for there is a difference when the cattel come upon the Lands of another in the default of the owner of the cattel as by escape or stray and where in the default of another For in the first case the Lord may distrain them before they be levant and couchant but in the latter case not Also a Rent reserved upon a Lease for years is a new Rent and not like unto an ancient Rent due upon an ancient Tenure betwixt the Lord and the Tenant For for a Rent reserved upon a Lease for years Roll 1 part 672. acc Hob. 265. Brown part 2 170. or for a Rent charge a man cannot distrain the cattel before they be levant and couchant upon the Lands although they come upon the Lands by escape estray c. Dyer The Lord cannot distrain the cattel which escape into the Land of his Tenant for want of enclosure of his Tenant before they be levant and couchant and yet the seignory is favoured for the antiquity of it But here is new Rent not in respect of any seignory but of reservation upon a Lease for years and therefore no distress before the cattel be levant and couchant upon the Lands Quod Harper Mounson concesserunt and Iudgment was given accordingly IX 17 Eliz. In the Common Pleas. Writ of Entry in the Per. THE Case was In a Writ of Entry in the Per against A. and B. A. pleaded several tenancy It was holden by Dyer chief Iustice that it is not any plea. Harper Iustice In Assise it is no plea for here the Land is not in demand Several Tenancy where no good Plea. but here it is a good plea and the Demandant ought to maintain his Writ Manwood In no action founded upon disseisin is this good For although the Demandant by policy will bring his Writ against the Tenant of the Land and another who he will name in the Writ upon trust and confidence and that he will not agree with the Tenant of the Lord in Dilatories for the Tenant of the Lands shall not be received to plead Dilatories Yet in that case several Tenancy is no plea for the Tenant but in a Formedon or other such like action which is not grounded upon disseisin if the Writ be brought in such manner as above the Tenant by policy that he may have the view and other reasonable delay may plead several Tenancy and so enforce the Demandant to maintain his Writ but contrary in the Case at Bar and so it was adjudged per Curiam X. Creswell and Cokes Case 19 Eliz. In the Common Pleas. Dyer 351. CReswell brought Debt against Coke and demanded 200 Marks upon the Statute of 13 Eliz. of fraudulent Deeds Gifts c. upon the second clause of the Statute Debt viz. That all parties or privies to such fraudulent Deed willingly putting in ure avowing c. as true simple Custome and given bona fide shall forfeit c. And shewed that one A. held of the Plaintiff 12 acres of customary Lands and died seised And that by the custome of the Manor Heriot the Lord was to have for a Heriot the best beast whereof his Tenant died possessed and farther shewed that the said A. in his life time and a little before his death being possessed of 30 Horses of the value of 200 Marks gave the said Horses to the Defendant with intent to defraud the Plaintiff and other Lords of their Heriots and that he went to the Defendant's house to seise his Heriot and the Desendant then strained the said Horses by reason of the Gift aforesaid for which the Action is brought To which the Defendant pleaded that the Plaintiff had seised one of the Horses nomine Herioti and as to the rest he did demurr in Law. Mounson Iustice was of opinion that the Plaintiff should recover the whole 200 Marks
Iudgment of Action and not rein luy doit and the Court advised the Defendant to plead accordingly XV. Beamont and Dean 's Case Hillar 20 Eliz. In the Common-Pleas Dower Dyer 361. IN Dower brought by the wife of Beamont Master of the Rolls in the time of E. 6. The Defendant said that he himself before the Writ brought did assign a rent of 10 l. per ann to the Demandant in recompence of her Dower upon which the Demandant did demur in Law and the cause was because the Tenant had not shewed what Estate he had in the Lands at the time of the granting of the Rent as to say that he was seised in Fee and granted the said Rent so as it might appear to the Court upon the plea that the Tenant had a lawfull power to grant such a Rent which was granted by the whole Court and the demur holden good XVI Hinde and Sir John Lyon 's Case Hill. 20 Eliz. In the Common-Pleas IN Debt by the Plaintiff against the Defendant as Heir Dyer 124. a. 3 Len. 70. 3 Len. 64. he pleaded That he had nothing by Descent but the third part of the Manor of D. The Plaintiff replied Assets and shewed for Assets that the Defendant had the whole Manor of Dale by descent upon which they were at issue and it was given in evidence to the Iury That the Manor was holden by Knight's-service and that the said Sir John the Ancestor of the Defendant Devises by his Will in writing devised the whole Manor to his Wife until the Defendant his Son and Heir should come to the age of 24 years and that at the age of his said Son of 24 years the Wife should have the third part of the said Manor for term of her life and her Son should have the residue and that if his said Son do die before he come to his age of 24 years without Heir of his body that the Land should remain to J. S. the Remainder over to another The Devisor died the Son came to the age of 24 years and the Question was If the Son hath an Estate-tayl for then for two parts he is not in by Descent And by Dyer and Manwood Iustices here is not any Estate tayl for no tayl was to rise before his said age and therefore the tayl shall never take effect and the Fee-simple doth descend and remain in the Son unless he dieth within the age of 24 years and then the Entail vests with the Remainders over But now having attained his said age he hath a Fee-simple and that by Descent of the whole Manor and a general Iudgment shall be given against him as of his own Debt And an Elegit shall issue forth of the moyety of all his Lands as well those which he hath by descent from the same Ancestor as any else and a Capias lieth against him But Manwood conceived That if general Iudgment be given against the Heir by default in such a case a Capias doth not lie although in case of false Plea it lieth Dyer contrary and the Writ against the Heir is in the Debet Detinet which proves that in Law it is his own Debt and he said that he could shew a precedent where such an Action was maintainable against the Executors of the Heir XVII Hil. 20 Eliz. In the Common-Pleas A Man made a Lease of Lands by Indenture Roll. 1. part 870. to begin after the expiration of a Lease thereof made to one Duffam and in an Action of Covenant brought by the second Lessee against the Lessor Covenant the Lessor said That there was no such Duffam in rerum natura at the time of the supposed Lease made to Duffam it was argued Estoppell That this Plea doth not lie for the Lessor for he is estopped to say against the Indenture That there is no such Duffam c. And also if no such person was then the first Lease was void and then the second Lease shall begin presently which Manwood and Mounson granted and by Manwood the Defendant shall be estopped by the Recital of the first Lease to say That there was no such Duffam And although the common Ground is That a Recital is not an Estoppel yet where the Recital is material as it is here it is otherwise for here the second Lease is to begin upon the expiration of the recited Lease and therefore in this case it shall be an Estoppel XVIII Mich. 20 Eliz. In the King's-Bench Action upon the Stat. of 5 Eliz. for Perjury 3 Len. 68. IN an Action upon the Statute of 5 Eliz. for a Perjury by three the Plaintiffs declared That the Defendant being examined upon his oath before Commissioners If a Surrender was made at such a Court of a Copyhold to the use of A. and B. two of the Defendants The Defendant swore there was no such surrender made c. Exception was taken to the Declaration because that the certainty of the Copyhold did not appear upon the Declaration for the Statute requires that in such Case the party grieved shall have remedy so as it ought to appear in what thing he is grieved quod fuit concessum per totam Curiam Another Exception was taken because the Action is given in this Case to the party grieved and it appeareth upon the Declaration that the Surrender in the negative deposing of which the Perjury is assigned Abatement of Writ was made to the use of two of the Plaintiffs onely and then the third person is not a party grieved for he claims nothing by the Surrender and therefore forasmuch as the two persons grieved have joined with the party not grieved the Writ shall abate against them all which Wray and Southcote granted XIX 19 Eliz. In the Common-Pleas Action upon the Stat. of 13 E. 1. of Winchester 2 Inst 569. IN an Action upon the Statute of Winchester 13 E. 1. against the men of the Hundred of A. Barham Serjeant took Exception to the Declaration because it appeareth upon it that the half year after the Robbery is not yet come for by the said Statute it is ordained that the Countrey have no longer time than half a year after the Robbery done within which time facent-gree of the Robbery or respondent the body of the Misfeasors And here the Action is brought within the half year And for this cause the Declaration was holden to be insufficient by the whole Court. And the Lord Dyer spake much in commendation of that Statute being made for the publick benefit of the whole Commonwealth for the Law intends when a Robbery is done That if the Countrey will not pursue the Malefactors that some of them are Receivers or Abettors of the Felons Manwood Iustice said When I was a Servant to Sir James Hales one of the Iustices of the Common-Pleas one of his Servants was robbed at Gadds Hill within the Hundred of Gravesend in Kent and he sued the men
and that is by reason of the privity betwixt them and because they are compellable to make Partition and in our Case they are compellable by Subpoena in Chancery to make Partition and notwithstanding that the Lands entailed be allotted to one Coparcenor onely and the fee to the other three yet thereby the Partition is not void but voidable As an Exchange by Tenant in tail is not void but if the Issue in tail accept of it it shall bind him during his life So here and also by the death of the Husbands the Partition is not void but voidable onely Clench Iustice How shall the Heir be said seised of the Lands entailed which was allotted to his Father and Mother after acceptance and agreement Atkinson Of certain part as Issue in tail and of other parts by force of the Partition and acceptance Quaere of that for if it be not of the whole as Issue in tail then the Lease is not void but for so much whereof he was seised in tail and then the Lessee is Tenant in common with Weston and then the Conusance is not good Cooper Serjeant elect Here wants certainty for the words of reference are too general and therefore void ad usum rectorum haeredum without shewing of the Donor or of the Donee and they are not helped by the subsequent words secundum antiquam Evidentiam ante hac factam for that also is incertain for it appeareth upon the Record That there are divers Evidences of the said Lands as the Charter of Gift the Recovery and the Conveyances made 4 H. 7. and which of them is intended by the Devise non constat and the said defect is not helped by any of the Averments i. That the Devisor was possessed of the said Charter of Entail at the time of his death and it is also not to the purpose for it may also be that he was possessed of other Evidences as ancient as the said Charter of Entail It is said that there is no other ancient Evidence of the Lord Scroop but it is not averred That there was not other ancient Evidences of the said Lands But admit that the limitation be good by that reference yet there was not any Estate-tail for every Estate-tail ought to be limited in certainty which see in the Statute of West 2. secundum formam in Charta Doni manifesto expressam c. and here it doth not appear upon the words of the Charter if the Estate-tail be limited to the Heirs of the Donor or unto the Heirs of the Donee and he said Admit that the same is an Estate-tail then the Question is If Jeofry be a Purchasor and if he be then by his death without issue the Estate-tail is spent And he said that the Estate for life in Jeofry is drowned by the Estate-tail limited to him for they are united together Egerton Solicitor-General Reasonable and favourable construction ought to be made of this Devise according to the intent of the Devisor As 35 Ass 14. Lands are given to B. and his Heirs if he hath issue of his body and if he die without issue of his body that the Lands shall revert to the Donor and his Heirs the same is a good Entail and upon the death of the Donee without issue the Donor shall re-enter And so here although that rectorum haeredum be incertain words yet the same is supplied by the subsequent words viz. secundum antiquam evidentiam As where the King grants to a Mayor and Commonalty such Liberties as London hath the same is a good Grant 2 H. 7. 13. 1 Leo. 245. And he conceived That this Estate-tail shall be said to begin in Henry although he was dead before and that all his Issues should inherit it and that it should not be determined by the death of Jeofry without issue and in proof thereof he vouched the Case before cited Littl. 81 82. for in that case the condition could not be holden to be performed if the Heir to whom the Gift was made in facto should be in by purchase and so the Estate-tail spent by his death without issue and also he vouched the Case of one Shelley That although the Heir took that which was not ever in his Ancestors yet he did not take it as a Purchasor but as in course of a descent and he also cited Robridge's Case And afterwards the same Term by award of the Court Iudgment was entred for the Plaintiff for the incertainty of these words secundum antiquam Evidentiam to what Evidence it should refer and also rectorum haeredum without shewing whose Heirs i. of the Donor or of the Donee And Wray chief Iustice said It shall be intended upon this Will That the meaning of the Testator was That the Lands should go unto his Heirs according to the Law according to all his Evidences which he had of his Lands and that is a Fee simple and it shall not be intended That the Testator had such a special remembrance of one Deed made two hundred years before viz. 25 E. 3. XXX Perry and Some 's Case Mich. 30 Eliz. In the King's-Bench Rot. 482. SOme Parson of the Church of Sherring in Essex 1 Cro. 139. libelled in the Spiritual Court against Perry for the Tithes of green Tares eaten before they were ripe and for the Tithes of the Herbage of dry Cattel and for Tithes of Sheep bought and sold and for Churchings and Burials Perry prayed a Prohibition and in his surmise as to the green Tares he said That they had used time out of mind c. in the same Parish In consideration that they had not sufficient Meadow and Pasture for their milch Kine and draught Cattel to pay for the Tithes of the ripe Tares the tenth shock but for their green Tares which are eaten up before they are ripe in consideration that they gave them to their Cattel they had used to be discharged of any Tithes thereof and the truth was That 400 Acres of Lands within the said Town had used to be plowed and sowed every year by the labour of draught Cattel and industry of the Inhabitants in consideration of which and that in the said Parish there was not sufficient Meadow nor Pasture for their draught Cattel they had used to be discharged of the Tithes of green Tares eaten before they were ripe It was holden by the Court that the same was a good custome and consideration for the Parson hath benefit thereby for otherwise the said 400 Acres could not be plowed for without such shift to eat with their draught Cattel the green Tares they could not maintain their plough Cattel and so the Parson should lose his Tithes thereof and for the Tithes of the green Tares he hath the Tithes of 400 Acres There was a Case lately betwixt the Lord Howard and Nichols where the suit in the Spiritual Court was for the Tithes of Rakings and a surmise to have a Prohibition was made that the
in execution it was adjudged in this Case that the Conusee should have the Corn sowed The same Law in case of a Recognizance LXXVI Smalman and Lane 's Case Trin. 29 Eliz. In the Common-Pleas THE Case was a Capias upon an original Process was delivered to the new Sheriff of Warwick against Lane at the suit of Smalman And the Sheriff informed the Court that before that the Process was directed to him That the said Lane was taken in Execution by the old Sheriff upon a judgment given against him in the King's-Bench and that the said old Sheriff had imprisoned the said Lane by force of the Execution in his own house and there he remained and prayed the advice of the Court what retorn he should make upon that matter because the said Lane was never in his possession for all the other prisoners which were in the Gaol and in the ordinary Prisons were delivered to him and the old Sheriff would not bring Lane to the place where the other Prisoners were delivered And it was the opinion of all the Iustices That by the Law the old Sheriff ought to deliver the body of him who is in his custody by view to the new Sheriff and such Prisoners ought to be brought unto him to view and from that time the Law shall adjudge such Prisoners to be in the possession of the new Sheriff and not before for he is not bound to go to them not being in the ordinary Prison of the County Anderson The new Sheriff may retorn That the said Lane is in Execution in custodia sua and so charge himself For although the Office of the old Sheriff be determined yet it is not an escape so long as the party be in custodia and not at large Periam contrary It is an escape in the old Sheriff as soon as his authority is determined the Prisoner not delivered See now C. 3. part 71. Wesby's Case LXXVII Megot and Broughton and Davie 's Case Mich. 29 Eliz. In the King's-Bench 1 Cro. 105. IN an Action upon the Case upon Assumpsit it was found by Nisi prius for the Plaintiff and afterwards before the day in Bank one of the Defendants died and after Iudgment given the other Defendant brought a Writ of Error in the same Court where the Iudgment was given and assigned an Error in fact scil the death of one of the Defendants pendant the Writ Roll 798. b. 3 Len. 96. Vide 2 E. 3. 21. It was said that the Case is not like the Case of an Action of Trespass for every Trespass done by many is several by each of them but every Assumpsit is joint and not several Another point was moved If the Court could reverse their own Iudgement Quaere LXXVIII Farrington and Fleetwood 's Case Trin. 29 Eliz. In the Exchequer THE Case upon the Statute of 31 H. 8. of Monasteries was this 3 Len. 164 165. ante 333. Plus The Abbat and Convent of A. c. 29 H. 8. made a Lease of certain Lands for three lives to begin after the death of one F. if they so long live and afterwards 30 H. 8 within a year before the dissolution they make another Lease to Fleetwood If the first Lease in the life of the said F. be such an Estate and Interest as by virtue of the said Statute shall make the second Lease void was the Question for it was not in esse but a future Interest Manwood All the reason that hath been made for the second Lease is because the first Lease is but a possibility for F. by possibility may survive all the said three and so it shall never take effect But notwithstanding be it a possibility or otherwise it is such a thing which may be granted or forfeited and that during the life of F. And note the words of the Statute If any Abbat c. within one year next before the first day of this present Parliament hath made or hereafter shall make any Lease or Grant for years life or lives of any Manors c. whereof and in which any Estate or Interest for life or years at the time of the making of any such Lease or Grant then had his being or continuance and hereafter shall have his being or continuance and then was not determined c. shall be void c. And here is an Interest and that not determined at the time of the making of the Lease to Fleetwood And of such Opinion were all the Barons and divers other Iustices and therefore a Decree was made against the Lease c. LXXIX Beaumont 's Case Trin. 29 Eliz. In the Exchequer NOte it was holden by all the Barons in the Exchequer Owen Rep. 46. That a Duty which is not naturally a Debt but by circumstances onely as Debt upon a Bond for performance of Covenants or to save harmless may be assigned over to the Queen for a Debt but in such case a present Extent shall not issue but a Scire facias shall issue forth to know if the party hath any thing to plead against such Assignment LXXX Goddard 's Case Trin. 29 Eliz. In the Exchequer IT was moved in the Case of Goddard concerning the Manor of Staple in Hampshire 11 Leon. 8. If the Tenant of the King of Lands holden in Capite be disseised and the Disseisor aliens the Lands and afterwards the Disseisee doth re-enter Manwood said That the Land shall not be charged with a Fine for alienation without licence because the Title of the Alienee grew under the wrong of the Disseisor but the person of the Disseisor shall be charged with such Fine Tenant of the King in Capite makes a Lease for life the Lessee for life makes a Feoffment in Fee without licence the Lessor re-entreth neither his person nor the Land shall be charged But if my Feoffee upon Condition maketh a Feoffment without license and I re-enter for the Condition broken now my Land shall be charged with the Fine upon Alienation for the Feoffee was in by me by good and lawfull Title because he had power to make a Feoffment over although subject to the Condition So if Tenant in tail or the Husband seised in the Right of his Wife make a Feoffment in Fee and afterwards the Land is recontinued the Fine accruing for Alienation without licence shall bind the Land And if Tenant for life loseth issues and dieth the Lands shall be charged with the same LXXXI The Lord of Northampton and Lord St. John 's Case Trin. 29 Eliz. In the Exchequer 2 Roll. 195. Co. 12. 1 2. Co. 4. 95. Dyer 262. THE Lord of Northampton had by ancient Letters Patents bona catalla felonum fugitivorum within the Isle of Ely and one dwelling within the Island was attainted of Felony to whom another was indebted by Obligation and the money by the Condition of the Bond was to be paid at a Manor of the Lord St. John's who within his Manor
years is out of the Book for by the Statute of 21 H. 8. cap. 15. he may falsifie the Recovery but no Receipt lieth in the case of a common Recovery for that he who recovers cannot put out the Termor As to that which my Brother Clark hath said That the bargain and sale in this case is not any forfeiture but when the bargain and sale is enrolled then it is a forfeiture I am not of such Opinion for although that the Enrolment be of Record yet the Deed is not of Record for against a Deed enrolled a man may plead Infancy although none can plead Non est factum Also he held That although by the bargain and sale and the Enrolment of it the Bargainee had not a fee for by such act the Reversion is not removed yet by the Recovery and the Execution of it the Bargainee hath gained a fee out of the Lessor for the Recovery is to the use of the Bargainee against whom it was had It hath been objected that here is onely a Voucher which paradventure was lawfull in this case by reason of a warranty paramount or of a Release or Confirmation with warranty and two Cases have been vouched to that purpose viz. 5 E. 4. 2. Tenant for life being impleaded in a Praecipe voucheth a stranger the Demandant counterpleads the Voucher which is found for him he in the Reversion hath no remedy but a Writ of Right so if the Vouchee had entred into the warranty and lost c. As to that book we ought not to conceive That every Case reported in our books is Law but let us observe of what authority that case is truly it is the conceit of the Reporter himself for he puts the Case and resolves the case but no Iudge or Serjeant is named in the case c. The other case is 5 E. 4. 2. b. Note by Heydon clearly If my Tenant for life voucheth a stranger who entreth into the warranty generally and doth not know how to bar the Demandant the Tenant shall recover in value and the Reversion of that which he hath in value shall be in me in lieu of my former Reversion as a Release to the Tenant for term of life shall enure to him in the Reversion But that is but the Opinion of one Serjeant c. But I answer to these books If the demandant in such recovery hath a good Title so as the Tenant or the Vouchee as Heydon saith do not know how to bar the Demandant there such Voucher of a stranger is no forfeiture nor such Recovery suffered upon it for against his Will volens nolens he suffered it but if the Tenant hath good matter to bar the Demandant and no good cause of Voucher nor any warranty as the matter is in the case of a common Recovery there the Voucher of a stranger or suffering of a Recovery is a forfeiture of his Estate And here in our case if the Demandant hath not any Title the Tenant or Vouchee hath not any warranty but the Tenant might have barred the Demandant if he would And he said That the Voucher onely doth not make the forfeiture but rather the recovery for when Iudgment is given and Execution is had then the Fee is plucked out of the Reversioner vide 6 R. 2. If Tenant for life claimeth a Fee the same is a forfeiture but here Sir William Pelham hath done more for he hath gained Fee by the Iudgment therefore à fortiori it shall be a forfeiture But let us see a little what meddlings or attempts by the particular Tenants are causes of forfeiture and what not 5 Assis 3. A. brought a Writ of Entry against Tenant for life by Collusion to oust B. of his Reversion supposing that the Tenant for life held of his Lease the Tenant confessed the Action upon which Iudgment is given B. enters and his Entry adjudged lawfull for this Recovery is adjudged in Law but an alienation to the disinheritance of him in the Reversion and there it appeareth that such Recovery by Covin is but an alienation and without any strength of a Recovery And he cited many other cases cited before by Altham 14 E. 3. Recept 135. where Tenant for life pleads in chief and prays in aid of a stranger where he might bar the Demandant and would not the same is a forfeiture Also 2 E. 3. 2. and 27 E. 3. where Tenant for life in a Quid juris clamat attorned to the Conusee upon a Fine levyed by him that had not any thing in the Land the same was a forfeiture and yet the Attornment doth not devest the Reversion out of the Lessor 50 E. 3. 7. and 8. Land was given by Fine in tail the Remainder over to a stranger in fee the Donee took a Wife and died without issue the Wife accepted Dower assigned by a stranger he in the remainder brought a Scire facias against the Wife she is Tenant in Dower of the assignment of a stranger and pleads to the Title the Demandant recovereth she hath lost her Dower for she hath not pleaded as she ought being a particular Tenant c. H. 4. Tenant for life loseth his Land in a Recovery against him against his Will and thereupon brings Quod ei deforceat and declares upon an estate-Estate-tail and recovers the same is a forfeiture because he hath challenged a higher Estate than he had 5 H. 5. Tenant for life joyns the Mise upon the meer right 2 H. 6. Lessee for years being ousted brings an Assise and recovers 1 H. 7. Accepts a Fine of a stranger upon condition come ceo c. all these are forfeitures In the principal Case here the Tenant who suffers his Recovery doth not plead at all to defend the Right but whereas he might have barred the Demandant he giveth strength to his pretended Title and makes it a perfect Title and by suffering this Recovery and Iudgment to pass upon it he hath taken the Reversion out of the Lessor to whom he owed Fealty and therefore he shall forfeit his Estate And without any doubt it is apparent to the Court that the Demandant in this Recovery hath not any Title but the Recoverors in such cases are but as Assignees or Purchasors which appears by the Statute of 7 H. 8. ca. 2. which gives Distress and Avowry to Recoverors c. As to the inventing of Recoveries it was a necessary device for it was to take away Estate-tails which were the causes of great mischiefs and inconveniencies in this Realm and there was great reason for it for Tenant in tail might by the common Law alien his Lands post prolem suscitatam and now he hath an Inheritance and may do Waste But he was so restrained by the Statute of West 2. that all the Realm and the Subjects in it were inveigled thereby Ioyntures of Wives Leases of Fermors Mortgages to Creditors Statutes and other Assurances were defeated by the deaths of Tenants in tail which
the Defendant is cosin and heir of the Devisor and that he as heir entred and did the Trespass First it was agreed by all That by the first words of the Will the three Devisees had but for their lives But Fenner and Walmesley who argued for the Plaintiffs conceived that by force of the latter words scil If the said John Stephen and Roger live till they be of lawfull age and have issue of their body lawfully begotten Then I give the said Lands and Houses to them and their heirs in manner aforesaid c. that they have Fee and the words in manner aforesaid are to be referred not to the Estate which was given by the first words which was but for life but to make them to hold in severalty as the first Devise would and not jointly as the words of the second Devise do purport And Fenner said It had been resolved by good opinion That where a Fine was levied to the use of the Conusee and his Wife and of the heirs of the body of the Conusor with divers Remainders over Proviso That it should be lawfull to the survivor of them to make Leases of the said Lands in such manner as Tenant in tail might make by the Statute of 32 H. 8. Although those Lands were never devised before the Fine yet the Wife survivor might demise them by force of the Proviso notwithstanding the words in manner c. So if Lands be given to A. for life upon condition the remainder to B. in manner aforesaid these words in manner aforesaid shall refer unto the Estate for life limited to A. and not to the Condition nor to any other collateral matter The words If they live untill they be of full age and have issue are words of Condition and shall not be construed to such purpose to give to them by implication an Estate tail for the words subsequent are That they shall have to them and their heirs to give and sell at their pleasures by which it appeareth that his intent was not to make an Estate tail for Tenant in tail cannot alien or dispose of his Estate c. And as to the latter words And if it fortune they three to die without issue c. these words cannot make an Estate tail and the express limitation of Fee in the former part of the Will shall not be controlled by implication out of the subsequent words As if Lessee for fourty years deviseth his term to his Wife for twenty years and if she die the remainder of the term to another although she survive the twenty years she shall not hold over And here the second sale appointed to be made by the Executor shall not take away the power of the first sale allowed unto the Devisees after issue Snagg and Shuttleworth Serjeants to the contrary And they said that the Defendant hath right to two parts for no Inheritance vesteth in the Devisees until full age and issue and because two of the Devisees died without issue they never had an Inheritance in their two parts and so those two parts do descend to the Defendant as heir to the Devisor no sale being made by the Executor These words If John Stephen and Roger are to be taken Distributive viz. If John live c. are to be taken Distributive scil If John live untill c. he shall have Inheritance in his part Et sic de reliquis As if I have right unto Lands which A. B. and C. hold in common and I by Deed release unto them all the same shall inure to them severally 19 H. 6. And here these latter words If they three die without issue it seems to be but an Estate tail See to that purpose 35 Ass 14. 37 Ass 15. For a man cannot declare his intent at once but in several parts all which make but one Inheritance and so it is said by Persay 37 Ass 15. we ought to adjudge upon all the Deed and not upon parcell And see Clatche's Case 16 Eliz Dyer 330 331. And it was said That if I give Lands to one and his heirs as long as J. S. hath heirs of his body the same is a Fee-simple determinable and not an Estate tail Quaere of that Then here the Fee-simple is determined by the death of the Devisees without issue and therefore the Lands shall revert to the heir of the Devisor especially there being no person in rerum natura who may sell for the Executor before any sale by him made died intestate and if he had made Executors yet the Executor of the Executor could not sell which see 19 H. 8. 9 10. And afterwards the Iustices resolved That no Estate tail is created by the Will but that the Fee-simple is settled in them when they came to their lawfull age and have issue so as the residue of the Devise is void And Iudgment was given for the Plaintiffs XCIII Hil. 29 Eliz. in the Common Pleas. THE Case was this viz. By the Civil Law the Parson ought to have his Tythe by the tenth Ridg And in a great Field there was Corn upon the Arable Land Roll. 646. and Grass upon the Head Lands and in a Suit for Tythe Hay and Rakings of the Corn the Defendant did prescribe to pay the tenth Shock of Corn for all the Corn Hay and Rakings of the Corn and the Prescription was challenged not to be good for it is upon the matter a Prescription of Non Decimando for the tenth Shock is due of common Right and so nothing is for the Hay and Rakings It was holden by all the Iustices That for tying of Horses upon the Head Lands and eating of the Grass and Corn together that the Prescription was good But the doubt was when the Grass is made into Hay which is upon the Head Lands If it be a good Prescription then and discharge for the Hay because it is another thing than what is growing upon the Land But in the end all the Iustices agreed That by the Civil Law ut supra the tenth Ridg is due for Tythe Corn 1 Cro. 446. 475. therefore for the reaping binding and shocking it is a reasonable Prescription that the party shall have the Hay upon the Head Lands in recompence of the said other things and the Hay upon the Head Lands is but of little value XCIV 29 Eliz. Challoner and Bowyer 's Case IN Assise of Novel Disseisin by Challoner against Bowyer it was given in Evidence at the Assise That William Bowyer was seised and having issue two Sons and two Daughters devised his Lands to his younger Son in tail and for want of such issue to the Heirs of the body of his eldest Son and if he die without issue that then the Land shall remain to his two Daughters in Fee William Bowyer dieth the younger Son dieth without issue living the eldest Son having issue him who is Tenant in the Assise It was moved That notwithstanding that by way of Grant the
contrary This Lease is good For Jermine was but Tenant at sufferance at the time of this Lease but if Jermine had been a Disseisor then delivery in the Chapter-house was void and then the second delivery upon the land good And Harris agrees That if Jermine be but Tenant at sufferance then the second Lease made of the land was good enough But it was agreed by the whole Court That the Lease is good enough for the manner and there is not other form or means for a Corporation to make a Lease than this here And it was moved That the first Lease was not utterly ceased without entry and then the new Lease being made before entry is void But Wray was clear of a contrary opinion and said That the Dean and Chapter might make such a Lease before entry But Gawdy Iustice doubted of it Vide 28 H. 8. 6. Dyer and Com. 2. and 3. Ph. and Ma. 132. Browning and Beston's Case Harris The Attorney hath not pursued his Authority for his Warrant is to enter into the Land in the name of the Corporation and claim it to their use and then to deliver the Lease made upon the land but the Iury have not found such matter but have found onely that he came by virtue of the said Letter of Attorney and delivered the same upon the land but do not find that he entred and claimed the same to the use of the said Dean and Chapter But the Court held the same good enough for in a special Verdict every particular circumstance need not to be found and in pleading it ought to be and because it is found That the Attorney by virtue of the said Warrant of Attorney hath delivered the Deed upon the Land he hath pursued his Warrant in all Gawdy Delivery of the Deed is as necessary in case of a Corporation as it is in the case of other persons CXX Rymersly and Cooper 's Case Trin. 31 Eliz. Rot. 768. In the King 's Bench. 1 Cro. 168 169. IN an Action upon the Case for slanderous words the Plaintiff declared That where by the custome of the City of London it hath been used If the Mayor Recorder or any Alderman being a Iustice of Peace there might take the Deposition of any person produced before them or any of them to be deposed in perpetuum rei memoriam ex parte alicujus personae which Depositions are there recorded in perpetuam rei memoriam and are good matter to be given in Evidence to any Iury there to inform their consciences of the truth of the thing in Question and declared farther That he himself was produced before one Bond as a Witness to testifie his knowledge in quadam causa ibid. ex parte Edw. Stapleton before whom he deposed c. The Defendant spake these words in scandal of the Plaintiff Rymersly was forsworn in the said oath before c. The Defendant pleaded That the Plaintiff made not any such oath and upon that the Plaintiff did demur in Law. George Crook prayed Iudgment for the Plaintiff for the same is no plea for the oath is but an Inducement and therefore not traversable for the ground of the Action is the speaking of the words and admit there were not any such Oath taken by the Plaintiff the offence of the Defendant was the greater Nam peccavit in utroque tam in juramento quod nullum omnino fuit quam in perjurio quod sine juramento esse non potuit for if one saith A. Murdravit J. S. whereas there never was any such J. S. yet the Action lieth for the scandalous words Also this Plea doth amount but to the general issue See 4 E. 6. Action Sur le Case 113. 34 H. 6. 28. And as to the words they are Actionable for forsworn amounts to purjured being spoken upon on oath taken in a Court of Record and so was it lately holden in the Case betwixt Brook and Doughty Brook and Doughtie's Case Godfrey Contrary The Declaration is not good for the custome in London is not well laid or pursued and therefore upon the matter it is but an oath taken before a private man for he hath declared That in the City of London it hath been used c. but doth not say That the City of London is Antiqua Civitas as he ought See the Case of the Prior of Lantony 12 E. 4. 8. and 22 H. 6. Prescription 47. If a man alledgeth a custome within a Town he ought first prescribe That the said Town is an ancient Town Also it is not set forth in the Declaration That Bond at the time of the Deposition taken was a Iustice of Peace in London and then the custome is not well persued But afterwards the Record was looked upon and allowed to be good by the Court and the Court conceived that the Plea of the Defendant was good enough as 13 E. 4. 8. In Debt against an Abbat the Plaintiff counted upon a borrowing by the predecessor c. the Defendant pleaded That he did not borrow and it was holden a good Plea and yet the Plaintiff in such Case might plead the general issue See 26 H. 8. and 34 H. 6. Br. Action Sur le Case 103. 3. Ma. Dyer 121. The Lord Mounteagle's Case 34 H. 6. 43. by Moile In Trespass Quare servientem suum verberavit c. It is a good Plea to say That he was not the servant of the Plaintiff and if in the principal the Defendant plead Not guilty he should thereby confess that the Plaintiff was sworn Wray chief Iustice The Plea of the Defendant is good And it was moved by Egerton Solicitor general That the custome to take Oath as is alledged is not allowable because it is not a reasonable custome that such Depositions should be taken in perpetuam rei memoriam If there be not a suit depending in the Cause and because that such custome not alledgable it is not reasonable and then the Plaintiff ought not to have Iudgment and such also was the opinion of Wray and Gawdy Iustices But for the default in the Declaration That it is not alledged That London is antiqua Civitas Iudgment was given against the Plaintiff CXXI Alexander and Dyer 's Case Trin. 31 Eliz. Rot. 901. In the King's-Bench IN Debt for Rent reserved upon a Lease for years 1 Roll. 605. 1 Cro. 169. The Plaintiff declared That he leased to the Defendant 37 Sept. certain Lands to have and to hold from the Feast of St. Michael next ensuing for a year rendring 10 l. Rent Virtute cujus 29 Sept. the said Lessee entred and enjoyed the said land from the Feast of St. Michael all the said year and because the Rent was behind c. And upon Nihil debet pleaded it was found for the Plaintiff It was moved in Arrest of Iudgment that upon the Plaintiffs own shewing here is no Rent behind and then no cause of Action for it appeareth in the Declaration that
Williams and Linford 's Case Trin. 30 Eliz. In the King 's Bench. WIlliam's brought an Action upon the Case against Linford 3 Len. 177. for standerous words spoken of the Plaintiff's land viz. Williams is worth nothing and do you think that the Manor of D. is his It is but a compact between his brother Thomas and him And farther declared That at the time of speaking of the words he was in speech with one J. S. to give to the said J. S. the said Manor of D. for his Manor of K. and that by reason of the said slanderous words 1 Cro. 346 787. the said J. S. durst not proceed in the said intended exchange It was objected That upon this matter an Action upon the Case doth not lie For the scandalous words were not spoken to him who was to be the Purchasor of the said Manor Smith and Johnson's Case but to a stranger For in the Case betwixt Smith and Johnson Johnson was in speech with another to sell his lands to him and Smith said to him who was to purchase them Will you buy Johnson's land Why it is troubled with more charges and incumbrances than it is worth Wray Iustice There is no difference whether words be spoken to the party or unto a stranger for in both cases the Title of the Plaintiff is slandered so as he cannot make sale of his lands Iudgment was given for the Plaintiff CXLVIII Barefoot and Luter 's Case Trin. 30 Eliz. In the King 's Bench. THE Case was A. B. and C. joynt-Ioynt-tenants in Fee C. granted his part unto D. and afterwards A. B. and D. Leased for years rendring Rent and afterwards A. died and they brought an Action of Debt for the Rent reserved and declared generally and upon the Evidence the special matter appeared that two parts of the Rent did belong to B. and but the third part to D. And the opinion of the Court was That the Declaration ought to have been special upon the whole matter For Prima facie it was conceived that each of the Plaintiffs ought to have had the moiety of the Rent and that is a supposal of the Declaration But now upon the Evidence it appeareth to the contrary So as the Defendant nil debet in that form Another matter was The Plaintiff declared of Rent of a whole year ended at the Feast of St. Michael last past whereas the Rent was not due at Michaelmas as the Plaintiff had declared but the thirtieth day after CXLIX Brown and Ordinacre 's Case Trin. 32 Eliz. In the King 's Bench. HEnry Brown and Joice his wife Executors of Thomas Brown brought an Action upon the Case against Van Ordinacre Alien and declared That where A. and B. were indebted to the Testator The Defendant in consideration that the Testator respectuaret the said A. and B. pro solutione debiti praedict per spacium unius septimanae tunc proxime sequen to pay the Debt to the said Plaintiffs modo sequent viz. one moyety within one week after and the other moiety at the end of the said week and farther declared That the Testator did forbear by the space of a week and after Imparlance Joice was summoned and severed The Defendant pleaded That he did not promise modo forma prout praâ—dict Brown allegavit and that it was alledged by both Executors And by a Iury De medietate Linguae it was found for the Plaintiff It was objected by Coke That here is not any issue prout Brown querens allegavit where in truth it was alledged by both the Executors before severance and not by Brown onely Also here is not any sufficient consideration alledged for the Plaintiff hath declared That he hath forborn by a week without saying next following as the consideration is laid in the Declaration But that was not allowed for so it shall be intended It was also objected That the Declaration is contrary to it self for it shewed That in consideration that the Testator should forbear for a week he promised to pay him within a week but that exception was not allowed For the week in the Assumpsit shall be construed the week after the week in the consideration Another exception was against the trial for the Defendant being an Alien The Venire facias was to summon twelve persons Quorum quilibet eorum habeat 4. l. in lands of annual Rent and that cannot be for Aliens cannot have lands not being made Denizens By the Common Law before the Statute of 27 E. 3. An alien by the Grant of the King might have an Action depending betwixt him and a Denizen per medietatem Linguae which see 22 E. 3. 14. and afterwards to make the same a general Law the Statute of 27 E. 3. was made but the same doth not extend to cases where the King was party which defect was supplyed by the Statute of 28 E. 3. cap. 13. Afterward came the Stat. of 2 H. 5. by which it is enacted That where the debt or damages amount to 10 marks every Iuror retorned for the trial should be able to expend lands of the value of 40 s. which was mischievous as to aliens and for the remedy of that The Statute of 8 H. 6. cap. ult was made which took away the effect thereof as unto aliens Then came the Statute of 27 Eliz. which enacted That every Iuror c. should expend 4 l. lands but that is where 40 s. was required onely and doth not extend to our Case and therefore the Venire facias in our Case was not well awarded To which it was said by the Clarks That after the Stat. of 27 Eliz. It had always so been to make the Venire facias generally according to the Statute but that is not a thing material and the Sheriff needs not regard that Wherefore it was holden That the Venire facias in the principal Case was well awarded CL. Mingey and Earl 's Case Pasc 32 Eliz. In the King 's Bench. IN Debt upon an Obligation The Defendant pleaded 1 Cro. 212 267. That the Obligation was with condition That whereas the Defendant had sold to the Plaintiff certain wood growing upon certain lands called S. in the County of Sussex If the Plaintiff might quietly take and enjoy the said woods and if the ground whereupon it groweth be four miles from the Town of Rye that then c. And for plea he said That the Plaintiff had quietly taken and enjoyed the said wood and that the said land by the next high and usual way for carriages is 4000 paces from the Town of Rye reckoning to every pace five foot upon which the Plaintiff did demur in Law. Gawdy Iustice For the computation of a mile in common understanding it is 1000 paces and if it shall be counted by the common way is the doubt but the meaning of the Parties was That the Plaintiff by felling of that wood should not encur the damage of the Statute of 23 Eliz. cap. 4.
the Office found Also the Traverse is not good for he traverseth the matter of the Conveyance which is not traversable for if the King hath Title non refert quomodo or by what Conveyance he hath it As to the matter in Law scil Tenant in tail in Remainder is attainted of Felony if the King during the life of Tenant in tail shall have the freehold and he conceived that he should for it shall not be in abeyance and it cannot be in any other for when he is attainted he is dead as unto the King. The chief Lord cannot have it for Tenant for life is alive and also he in the Remainder in Fee c. the Donor shall not have it for the Tenant in Remainder is not naturally dead but civilly and the Land cannot revert before the Tenant in tail be naturally dead without issue but if there were any other in whom the Freehold might vest and remain then the King should not have the Freehold but onely the profits So if the Tenant be attainted the Lord shall have the Lands presently 3 E. 3. 4 E. 3. The Husband seised in the right of his Wife is attainted of Felony the King shall have but the profits for the Freehold vests in the Wife and if the Lord entreth the Wife shall have an Assise And Tenant in tail may forfeit for his life as he may grant for his life See Old N. B. 99. If Tenant in tail for life dower or by the curtesie be attainted of Felony the King shall have the Lands during their lives and after their deceases he in the Reversion shall sue unto the King by Petition and shall have the Lands out of the King's hands and there it is farther said That the Lord by Escheat cannot have it for the party attainted was not his very Tenant nor he in the Reversion for the term yet endures But now it is to see if the Freehold be in the King without Office and he conceived and argued that it was Where the King is entituled to an Action there the King ought to have an Office and a Scire facias upon it as where the King is entituled to a Cessavit Action of Waste c. 14 H. 7. 21. where the Entry in case of a common person is necessary there it is requisite that there be an Office for the King As if a Villain of the King purchaseth Lands or an Alien born c. so for a condition broken Mortmain c. And in some cases an Office is onely necessary to instruct the King how he shall charge the Officer for the profits which may be supplied as well by Survey as by Office as if the King be to take by descent or as the Case is here And true it is that a person attainted of Felony may during his Attainder purchase Lands and yet he cannot hold it against the King and it is clear that by the Common Law in such cases the Land was in the King but not to grant for the Statute of 18 H. 6. was an impediment to it but now that defect is supplied by the Statute of 31 H. 8. cap. 20. So that now the King may grant without Office See Doughtie's Case 26 Eliz. And in our Case an Office is not necessary to entitle the King but for explaining of his Title and see 9 H. 7. 2. The Lands of a man attainted of High Treason are in the King without Office so where the King's Tenant dieth without Heir or Tenant in tail of the Gift of the King dieth without issue See Br. Office before the Escheator 34. and see 13 H. 4. 270. A man is attainted of Treason the King before Office grants his Lands and Goods Things which lie in Grant as Advowsons Rents Remainder such things upon Attainder are in the King without Office. As to the general pardon of 23 Eliz. he said That that doth not extend to this Case and that this interest of the Queen by this Attainder doth not pass by that pardon out of the Queen so if the Queen had but a Right or Title onely Popham Attorney General By this Attainder the Estate of him in the Remainder in tail accrueth unto the Queen for the life of him in the Remainder for by our Law Felony is punished by the death of the Offendor and the loss of his Goods and Lands for the examples of others therefore nothing is left in the party Tenant for life is attainted of Felony the King pardoneth him his life yet he shall have his Lands during his life and he may dispose of the same for his life And so is it of Tenant in tail for he may forfeit all that which he hath and that is an Estate for his life which is a Freehold If Lands be given to one and his Heirs for the term of the life of another and the Donee be attainted of Felony the King shall have the Land during the life of Cestuy que vie for the Heir cannot have it because the bloud is corrupt and there is not any occupancy in the case for 17 E. 3. the Iustices would not accept of a Fine for the life of another because there might be an Occupant in the case But for a Fine of Land to one and his Heirs for the life of another they would take a Fine for there is no mischief of occupancy Land is given to A. for life the Remainder to B. for life the Remainder to the right Heirs of A. who is attainted of Felony B. dieth now the King hath the Fee executed And here in our Case If the Tenant for life had been dead no Praecipe had lien against him in the Remainder being in possession but the party who hath right is to sue unto the King by Petition 4 E. 3. If one seised of Lands in the right of his Wife for life be attainted the King shall have exitus proficua but he conceived that Case not to be Law For see F. N. B. 254 D. The Husband seised in the right of his Wife in Fee is outlawed for Felony the King seiseth the Husband dieth now shall issue forth a Diem clausit extremum the words of which Writ in such case are Quia A. cujus Terr Tenement quae ipse tenuit de jure haereditate N. uxoris suae adhuc superstitis occasione ejusdem Utlagar ' in ipsum pro quadam Felonia unde indictatus fuit c. in Man. Domini H. patris nostri extiterunt c. therefore the King had not the issues onely but also the Lands See to the same purpose the Register 292. b. Stamford's Placita Coronae 186 187. affirms That Tenant in tail being attainted of Felony shall forfeit his Lands during his life And he said that the Estate of Thomas Venables was in the King without Office not to grant for that is restrained by the Statute of 18 H. 6. but it is in him before Office so as he who hath right ought
to sue to the King by Petition if he will have his Land yet he conceived that before the Statute of 18 H. 6. the King might grant the Land before Office as it appeareth by Thirning 13 H. 4. 278. who was before the said Statute So if the King's Tenant makes a Lease for years the Remainder over to another in Fee who dieth without Heir the Remainder is in the King without Office because a common person in such case cannot enter but a claim is sufficient and therefore it shall be in the King without Office. As to the pardon he said That it doth not extend to this Estate for this is a Freehold ergo not within the pardon As if the King's Tenant be attainted of Felony and the King pardons him all offences and all things which he may pardon these words shall not go nor extend to Freeholds but onely unto personal matters and such punishments and peins which do concern Chattels But it may be objected That by this pardon Title of Quare Impedit and Re-entries for Conditions broken are excepted and therefore if they had not been excepted they had been remitted by the pardon and therefore this pardon shall extend to Inheritances and Freeholds As to that I say That such Exceptions were not in use in the time of H. 4. and yet Inheritances and Freeholds were not taken to be within such pardons and such Exceptions did begin 5 Eliz And he said he had been of Council in such Cases where it hath been taken that such pardons did not extend to Freeholds As an Abbat was disseised and afterwards during the Disseisin the Abby is dissolved the King makes such pardon the same doth not transfer the Right of the King and in that Pardon are divers Exceptions of Goods and Chattels in many cases and therefore it cannot be intended that the pardon doth extend to Freeholds And see the said Act of pardon The Queen grants all Goods Chattels Debts Fines Issues Profits Amercements Forfeitures Sums of Moneys which word Forfeiture shall be intended of a personal Forfeiture non aliter for it is coupled with things of such nature And as to the Traverse he said It did not lie in this Case for the Office is not untrue but true in substance although void in circumstance And also the King here is entituled by double matter of Record scil the Attainder and the Office and he said that the Statutes of 34 and 36 E. 3. which gave Traverse are to be intended of Offices found virtute Officii and not virtute Brevis for then Efcheators were very troublesome And the Statute of 2 E. 6. doth not give Traverse but where the Office is untruly found as if Tenant of the King be disseised and the Disseisor be attainted the Queen seiseth the Land Now the Disseisee hath not remedy by Traverse upon the Statute of 2 E. 6. but is put to his Monstrans de Droit for the Office is true But if I be Tenant of the King and seised of Land accordingly and it was found that J. S. was seised of my Land and attainted c. whereas in truth he had not any thing in my Land there Traverse lieth for the Office is false and so in our Case for the Traverse it is at the Common Law and it was true that Venables was seised Coke to the contrary and he said That by the Attainder the Queen hath gained but a Chattel and that notwithstanding this Forfeiture if Venables had been in possession a Praecipe should be brought against him And where it hath been said by Mr. Attorney That Writs set down in the Register are the best Expositours of our Law the same is not so for the Register saith That Waste lieth notwithstanding a Mesn Remainder which is not now Law but it hath been clearly ruled to the contrary and see accordingly 50 E. 3. the Register therefore and the Writs are subject to the Iudgment of our Law and the Writ of Diem clausit extremum is not to the contrary for I confess that in such case the Land shall be seised into the hands of the King but the King shall not have but a Chattel therein It hath been argued It may be granted Roll. Tit. Grant. 4 Len. 112. ac Godb. 351. a. therefore it may be forfeited Nego Consequentiam for a man seised in the right of his Wife may grant but not forfeit Gardian in Socage may grant but not forfeit the Husband may grant a term for years which he hath in the right of his Wife but he cannot forfeit it A woman Inheretrix taketh a Husband who afterwards is attainted of Felony the King pardons him they have issue the Husband shall be Tenant by the curtesie which proveth that the King hath not the Freehold by that Attainder Before the Statute of Westm 2. Tenant in tail post prolem suscitatam might forfeit his Lands but now the Statute hath so incorporated the Estate tail to the Tenant in tail that it cannot be devested even a Fine levied by him ipso jure nullus although as to the possession it be a Discontinuance and that is the reason wherefore Tenant in tail shall not be seised to another's use See Stamford 190. The Husband seised in the right of his Wife is attainted of Felony the King shall have the profits of the Lands of the Wife during the life of the Husband c. So if Tenant in tail be attainted of Felony and that is but a Chattel in the Lands of the Wife and also in the Lands of the Tenant in tail and if the possessions of a Bishop be seised into the Queen's hands for a Contempt in such case the Queen hath the possession and not the profits onely the same Law of the Lands of Tenant in tail or for life being attainted of Felony so of seisure for Alienation without license or of the possessions of Priors Aliens See Brook Reseiser 10. So where the Seisure is for Ideocy And he said That in the principal Case nothing is in the King until Office and as to the Case of 13 H. 4. 6. he confessed the same for at that time many and amongst them Lawyers and Iustices were attainted by Parliament and so was Sir John Salisbury whose Case it was and their Lands by Act of Parliament given expresly to the King and therefore I grant that their Lands were in the King before Office. Tenant in Fee of a common Lord is attainted of Felony his Lands remain in him during his life until the Entry of the Lord and where the King is Lord untill Office be found but in the Case of a common person after the death of the person attainted they are in the Lord before Entry and in the Case of the King before Office for the mischief of abeyances And see the Lord Lovel's Case 17 and 18 Eliz. 485 486. Plow where it is holden That upon Attainder of Treason by Act of Parliament the Lands were
Statute and the penalties thereof And upon a great deliberation it was by them all resolved and agreed That notwithstanding the said Conveyance the said Lands were liable to the said Statute And as to the Iurors who against the Evidence given to them for the Queen gave their Verdict ut supra Process was awarded against them out of the Court of Exchequer for to appear before the Lord Treasurer and the Barons And for their said contempt they were committed to the Fleet and each of them fined 50 l. CLXXVI Moore and Savil 's Case Trin. 27 Eliz. In the Exchequer IN an Ejectione firmae by Moore against Savil the Case was That Tenant in tail leased the Land to the father mother and son for their lives by Indenture in which it was comprehended That forasmuch as the Lessor is but Tenant in tail and so cannot by Law limit these Estates by way of Remainder but jointly in possession and his intent was That because this Lease was procured and obtained at the special suit and costs and charges of the father That the said son should suffer his father and after him his mother to take the profits of the said Lands demised and to occupy and hold the said Lands to their onely profit without interruption of the said son notwithstanding his joint Estate in possession with them Provisum igitur est That if the said son shall challenge claim demand or take any profits of the Lands so demised or enter into the same during the life of his said father or mother That then the Estate to him limited by the said Indenture should cease and be utterly void And it was the clear opinion of the whole Court That this Condition and Proviso was utterly void for it is contrary to the Estate limited before as in the Case cited by Coke at the Bar. If I lease to you my Lands for 20 years Proviso that you shall not occupy the same the two first years the same Proviso is void and contrary and repugnant to the Estate CLXXVII Lord Cromwel and Townsend 's Case Mich. 28 Eliz. In the Star-Chamber HEnry Lord Cromwel exhibited a Bill in the Star-Chamber against Roger Townsend Esquire for that the said Roger Townsend in an Action betwixt James Taverner Plaintiff and James Cromwel Farmor of the said Lord Cromwel Defendant in Trespass in the favour and unlawfull maintenance of the said Taverner did procure a partial Iury to be retorned And upon the hearing of the Cause the matter given in Evidence was That the said Taverner was a Copiholder of the said Lord Cromwel and that the said Lord Cromwel pretending that the said Taverner had forfeited his Copihold caused the said James Cromwel to make an Entry in the right of the said Lord upon the said Taverner upon which Entry Taverner brought an Action of Trespass against the said James Cromwel in which Action the parties were at Issue upon the forfeiture And before any Venire facias issued forth Taverner hearing that one Steward who was Bailiff of the Franchize under the Earl of Arundel and who ought to make the Pannel c. was purposed to have made the said Pannel not duly viz. to retorn therein great Gentlemen of the County who were Lords of Manors in favour of the said Lord Cromwel went unto the said Roger Townsend who was then one of the principal servants and agents of the said Earl and shewed to him that if those great persons and Lords of Manors be retorned for the trial of that Issue peradventure they would not so easily appear for the expedition of the parties as people of lesser condition and also many of them being Lords of Manors and having customary Tenants and therefore not indifferent to try that Issue and prayed his Order to the said Steward for the making of an indifferent Pannel where upon a conference with the said Steward for the making of an indifferent Pannel and shewing to him the making of the said Pannel was not convenient or any equal course to retorn Knights Esquires or Lords of Manors but rather such sufficient persons for the greater expedition of Iustice and indifferency of the trial And afterwards the said Taverner exhibited a Petition shewing all the special matter and praying him to give Order for the making of an indifferent Pannel for the trial of that Cause which Petition was delivered to the said Earl by the said Townsend in the name of the said Taverner Vpon which the Earl did refer the said matter to three of his chiefest agents and Counsellours i. Dicksey Townsend and Carrel and delivered to them the Book of Freeholders within the said Franchise who according to their Commission made a Pannel which was retorned and the Iury passed with the said James Cromwel in the right of the said Lord And if this intermedling of Townsend with this matter as abovesaid c. especially his conference with the Bailiff be maintenance or not was the Question And by the Lord Anderson and the Lord Wray chief Iustices It was delivered for Law That because the said Townsend was in manner a servant of the said Earl who had retorn of Writs and one of his principal Counsellours and agents and hearing Ex insinuatione of the said Taverner the misdemeanour of the Bailiff of his Lord could not do better than to shew to the Bailiff his duty for it concerned the honour of his Lord and also his Inheritance in the Franchise But if the said Townsend had been a mere stranger to the said Earl so as no such privity had been betwixt them it had been clearly maintenance in Townsend as it was lately adjudged in this Court in the Case of one Gifford Gifford's Case where the parties being at Issue and a Venire facias was to the Sheriff to retorn a Iury a stranger wrote to one of the Iurors who was retorned in the Pannel praying him to appear at the day and to doe in the Cause according to his Conscience and that was adjudged Maintenance And afterwards upon the full hearing of the cause the said Townsend by the sentence of the said Court was acquitted of every Maintenance with great allowance and approbation of many Lords of the Council there present Bromley Cancellario tantum exclamante CLXXVIII Sir Moil Finch 's Case 33 Eliz. In the Exchequer 2 Roll 184. 1 Cro. 220. Poph. 25. 1 Roll 215. THE Case was this The King and Queen Philip and Mary leased for seventy years for certain Rent payable at the Feasts of Saint Michael and the Annunciation Proviso that if the Rent be behind and not paid by the space of forty days after any of the Feasts aforesaid that the Lease shall cease and be void At Mich. 9 Eliz. the Rent was not paid according to the Proviso but a Month after the said forty days it was paid and Acquittance given for it and so the Rents due after unto 30 Eliz. were duly paid and Acquittances given for the same
be determined or not And he said That Leases which are of Record are to be recited in Patents of the King but not those which are not of Record for Leases on Record may be easily found but contrary of Leases in Fait but in our case all is helped by the Non obstante for the words of the Letters Patents are Non obstante That no office be thereof found misrecital or non-recital of the former Leases c. It hath been objected That because that the Law of the Land is That in Grants of the King all former Estates ought to be recited the Non obstante of the Queen shall not help it To that he said That where the Law makes for the Queen there the Queen for a particular respect may dispense with the Law. If the Queen be deceived by the not recital that makes the Letters Patents naught but if the Queen be not deceived by the not recital the same shall not hurt And it is clear That the Queen may dispense with a Statute Law although perhaps not with the common Law The Queen grants upon suggestion if the suggestion be false the Patent is void because the Queen is deceived in her Grant and if the suggestion rest in Articles and some of the Articles be false the Patent for that is void but if in the Patent such clause be That be the suggestion true or false the Patent shall be good If the King seised of a Manor to which an Advowson is appendant grant the Manor cum pertinentiiâ— the Advowson shall not pass But if the Grant be in tam amplis modo forma c. prout ipse Rex tenuit the Advowson shall pass And he said That the Office here is not necessary to determine the Lease but to enable the Queen to punish the Lessee for the continuance of his possession And if the conclusion of the Condition had been by way of re-entry for non-payment of the Rent and after the Rent is behind and afterwards the Queen accepts the Rent due after the Queen is not bounden by that but upon an Office found she shall avoid the Lease Drew Serjeant contrary and he said That here is a condition but not a limitation for here is the natural word of a Condition scil Proviso Some Cases put by Popham are Conditions and not limitations As a Lease for years Proviso that if the Lessee die within the term that then the Lease shall be void the same is a Condition And in many Cases many words less apt than these in our Case shall make a Condition As a Feoffment dummodo solvat c. And he said That without an Office the Lease is not void See 35 H. 6. 57. The King giveth to Religious use certain Lands ad effectum to find a certain number of Monks to hold in Frankalmoign the King in that case cannot have Cessavit for the Services are not certain but if it be found by Office that they have not their number or do not make their Prayers the King shall cease by Br. Tit. Offic. 4. And he said that this was often done in the time of Hing Henry the eighth Lands given Habend pro erectione Collegii Cardinalis Eborum c. Where the King is to have Lands but as a pledge as for an Alienation without licence Office ought to be found of such Alienation So of a Feoffment made to an Alien otherwise it is in case of necessity because the Freehold cannot be in abeyance Tenant of the King is attainted of Treason before 33 H. 8. the King shall haâ—â—â—â—e Land in point of common Escheat untill Office be found and afterwards by force of the Attainder So if the Tenant of a Subject be attainted of Treason before Office found the Land shall be in the Lord but after Office it shall be in the King 7 H. 4. If the King's Tenant dieth his Heir within age the King may seise the Body and grant it over without Office but not the Lands See for the same 5 E. 6. Br. Office 55. in the Case of Charles Brandon 35 E. 3. Villainage 22. The Villein of the King purchaseth Goods and Chattels the property of them is in the King before Office or seisure but in the case of lands he ought to seise If this had been the case of a common person the Lease should not be avoided without demand therefore neither in the Case of the King without Office For as the Lease it self was made by matter of Record so it ought to be avoided by matter of Record otherwise it shall not be taken void in Law notwithstanding that the words are That the lease shall be void By the Statute of 11 H. 7. Alienations and Discontinuances by Women are made void the same ought not to be holden altogether void as betwixt such Women and the Alienee but onely betwixt the Woman and the Heir the Statute of 1 Eliz. enacts That all Leases made by a Bishop above the term of twenty one years shall be void the same shall not be construed to be void but onely as to the Successor for it shall bind the Lessor himself as it was adjudged 5 Eliz. in the Case of the Bishop of Bath As unto the Office here in our case the same shall not enure to avoid the Lease but onely to enable the Queen to punish the party for the Mean profits after the breaking of the Condition But in our case nothing is due to the Queen for the Mean profits for we have shewed the payment of all the Rents and the Arrearages thereof after the breach of the Condition and before the Grant of the King and therefore this Office being for no use shall be void unless it had been found that the Land was of more yearly value than the Rent c. As in the case of common experience of Chantries the Lands shall not be intended to be of greater value than the Rent to be paid out of it if not that it be found by Office When the Queen hath after received the Rent and granted over the Reversion now the Forfeiture is purged not by way of conclusion but it amounts to as much as if the Queen had said That she would not take benefit of it 4 H. 6. Champernoun's Case The King by taking in Ward of the Heir of the Donee hath waved the Heir of the Donor See Plow in the Lord Barkley's Case 3 Eliz. 237. and F. N. B. 143. And here in our Case when the Queen grants over the Reversion here the whole use of an Office is gone for no Office shall be found for the benefit of a Subject and as to the Queen no benefit shall accrue unto her by such Office for if she by such Office shall be entituled to the possession she should avoid her own Grant of the Reversion for she ought to have as great an Estate by the breach of the Condition as she had at the time of the Condition And in this Case
the Office comes too late for the Queen c. as in the Lord Lovel's Case Plow 18 Eliz. 482. A Lease for years is made unto an Alien upon condition that if the Alien pay such a sum of Money to the Lessor at any time during the Lease that he shall have Fee the Alien is made a Denizen the Money is paid and all that is found by Office The Queen shall not have the Fee for at the time of the vesting of the Fee the Lesse was Denizen and the Office shall not relate to the time when the Fee vests and no farther but to avoid incumbrances and so in such Case the Office comes too late And if the King's Villain purchaseth Lands and the King make him free and afterwards Office is found the same shall not entitle the King but the Villain manumitted shall hold the Land So in our Case the Queen after this Grant shall not take the benefit of this Office or breach of the Condition found by it And afterwards Manwood chief Baron gave order That those who do argue after shall speak but to two points 1. Where the Queen Leases for years rendring Rent payable at the Receipt at West in which Lease there is a Proviso That if the Rent be behind the Lease shall be void If now the Rent not being paid the Lease shall be void without any Office 2. To what effect an Office now shall be being found after the Queen hath granted the Inheritance over At another day Owen Serjeant argued to the contrary and he said the Lease is void without any Office for as a Lease for years may be made by contract so it may be avoided by words of contract otherwise it is of Freehold So that a Lease shall be avoided without entry 6 E. 6. 137 138. Plow Browning and Beston's Case Offices are of two sorts First entituling the Queen as purchase of an Alien purchase of Villain alienation in Mortmain and Offices informing the Queen where she hath interest in the Land before as in our Case here Admit that the Office was necessary to find the breach of the Condition the Patentee shall take the benefit of it for being found by Office that the Queen hath made such a Lease with condition to be void for non-payment of Rent and that at such a day the Rent was behind now being of Record every Subject shall take advantage of it As where a Husband makes a Feoffment in Fee upon condition of the Land of his Wife and dieth If the Heir enter for the Condition broken now may the Wife enter upon him for now the discontinuance is avoided See 11 H. 7. 17. Where the Grantee of the Reversion shall take advantage of a condition ut supra concluding That the Lease shall be void And see 136. Plowd Browning and Beston's Case And although after the default of payment the Rent due afterwards was accepted yet that shall not conclude the Queen for this acceptance is not under the great Seal but onely done by the Office Also the Lease being void for the non-payment cannot be made good by acceptance afterwards Atkinson contrary Although that the Lease be void de facto yet until it appeareth to the Court the Court cannot say it is void or not void therefore Office is necessary to ascertain the Court The Queen is a body Politick and the chief body Politick above others because she is the Maker Authour and Creatour of all other Corporations and that is the reason that the King cannot speak without writing and this is the most solemn writing i. Writing of Record So she cannot take but by Record And in our Case it doth not appear by any writing of Record the Rent was behind and it is agreeable to the Majesty of a King to do nothing without matter of Record which see 4 Eliz. in the case of the Dutchy And he said there is no difference betwixt the Case in 2 H. 7. and our Case In each Case it is a Lease for years Rent reserved in this onely differing that there is a clause of re-entry and here the conclusion of the Condition is that the Lease shall be void but in both Cases none can say that the Rent is behind untill it be found by Office therefore none can say that the Lease is void untill Office found See by Thorp 35 E. 3. Chattels personals of the King's Villains are in the King without office for such things may be lost or worn contrary of Chattels Reals as a Lease for years for Land cannot but continue and such things which may be in the King without writing he may grant without writing as a chain of Gold or a Horse Deodands Felons goods Wreck c. vest without Office because Chattels personals See 20 E. 4. 11. contrary when they are Chattels reals and permanent for there an Office is necessary In the Case of year day and waste an Office ought to be found Ergo à multo fortiori in case of a Lease for years which is a greater interest c. 49 E. 3. 11. There is a general Rule Quo modo quodque ligatur eo modo dissolvitur That which passeth by Livery ought to be reduced by re-entry that which begins by Record ought to be determined by Record and here in our Case the Land cannot depart from the King without Record therefore it shall not revert without Record although that the breach of the condition be but matter of fact yet the proof of that ought to be of Record And here in our Case is a condition and not a limitation And he said that in the Case often cited before of 11 H. 7. 17. it is a limitation and not a condition For if it were a condition the Grantee by the Law could not take advantage of it because not privy and he was clear of opinion that where the words are That the Lease shall cease or shall be void yet in such cases there ought to be an Office for in Leases of the King there needs no re-entry because the King to speak properly cannot re-enter And the words That the Lease shall be void do amount to words of re-entry and he said That in the Case of a common person upon such a condition broken the Land shall not be in the Lessor without re-entry no more shall they be here in the Case of the Queen without an Office Also the Rent reserved upon this Lease was behind and the Lessee continuing the possession the Queen by acceptance of the Rent hath affirmed the party Tenant and afterwards granted the Reversion over before any Office found of that matter Now the Lessee is discharged and shall never be impeached for the said Rent behind and the Grant Ex certa scientia c. after found shall not defeat this Grant by any relation And the Queen by her Grant hath included all the advantage which accrued unto her by the breach of the Condition and as to that which hath
by the Lessor to the Lessee cannot enure and that for want of privity Lit. 109. And such Lessee cannot attorn and if the Lessor after that accepts of the Rent the same doth not make the Lease good and all for want of privity therefore here is no privity As to property such a Lease shall not be said Assets in the hands of an Executor nor shall be sold upon an Extent nor forfeited by outlawry And here in this Case the Queen cannot be said to take any thing by the breach of the Condition but hath her reversion discharged of the Lease and he said That the Office is found well enough for time and it shall relate to the time when the title accrued that is when the Rent was behind and the arrearages of the Rent do not pass by the grant of the Land or the reversion The Queen hath a Rent-charge out of Lands which is behind the Lands come to the Queen and she grants the same over yet she shall charge the Lands with the said arrearages but contrary in case of an injury done upon the Land of the Queen As the Tenant of the King aliens without licence and afterwards the Lands so aliened came to the King's hands who grants them over the Grantee nor the Land shall be charged but onely he who was party to the alienation his Lands and his Executors So of an Intrusion Tenant for life of the King makes a Feoffment in Fee the King grants over the reversion and afterwards the tortious Feoffment is found by Office this Office is soon enough for time and the Grantee of the reversion shall have advantage of it and the King the mean profits from the time of the alienation and afterward in Mich. Term 33 Eliz. the Case was argued by the Barons Clark Puisne Baron The Lease is conditional and with a limitation also so conditional and limitation mixt together 3 Ass 10. Land given to one untill he come from foreign parts Lands given to one so long as he shall continue sole is an Estate for life with limitation upon her marriage so during the coverture c. and these limitations are not collateral but begin with the Estates when the Estates are limited but conditions always come when the Estate is settled as it is in our Case yet if the intent and substance of the Contract betwixt the King and the Subject be well considered there shall not be any difference c. Lands devised to one Proviso That if the Devisee shall disturb the Executors of the Devisor his Estate shall be void and the land remain over c. the same is a good remainder for it is a limitation conditional See Scholastica's Case Plowd Com. 14 Eliz. 413. concerning an Estate tail with a limitation And Fitz. James Case there put by Dyer See Browning and Beston's Case before cited and Martin Dockra's Case where a condition is conceived in words of Covenant c. Gent Baron argued to the same intent Manwood chief Baron to the same intent The Rents reserved upon the Leases of the Queen are to be paid to Receivors Baileys or at the Receipt of the Exchequer The Queen shall not make any demand of her rent for she hath an infinite number of Farmors and if demand be necessary she were to send an army of Receivors or Baileys to receive and demand her rents If the Rent of the King be to be paid at the Exchequer if the King 's Fermor be there and tender the rent at due time and none be there to receive it he hath saved his Lease for he hath done his possible endeavor although the words of the Condition in the Lease be behind and unpaid yet not tendred shall be understood as in the common case of Mortgages and Obligations But in all the Record before us there is no words of any tender therefore according to the words of the condition the Lease is meerly void and determined in right in privity and in tenure for so is the pleasure of the Prince expressed in her Letters Patents under the great Seal of England That it shall be then void and of no effect Then i. whensoever the Rent shall happen to be behind and therefore as soon as the Rent was behind the Lease was determined so that if after the non-payment a stranger had entred upon him scil the Lessee upon which he brings Ejectione Firmae the Defendant might have pleaded the special matter against him Iudgment if Action so as the Lease is void in Right It is also void in Privity and Tenure for a Release to such Lessee after the Rent is behind is altogether void for he was not then Lessee and so the privity is gone and no acceptance can make such Lease good And if such a Lessee after his Rent would surrender and in consideration of such Surrender obtain a new Lease from the Queen this new Lease is also void for here upon the matter is no surrender Also such a Lease is void in property for if the Lessee in such case dieth his interest such as it is shall not be accounted Assets in the hands of his Executor upon the breach of this Condition for the Rent although that the Lease be become void yet the possession of the land is not resetled in the Queen without Office and although the Office doth not make the Lease void which was void before for non-payment of the Rent yet before Office found the possession is not vested in the Queen for before Office found we cannot award Process against such a Lessee for his continuing the possession after the Rent behind and untill Office found the Lessee cannot be found an Intruder and Tenant at Will he cannot be for no other Will appears of the Queen but that in the Letters Patents and that is to have the Lease void whensoever the Rent shall be behind and that Estate is gone because the Rent is behind Tenant at sufferance he cannot be in this case In case of a common person when Lessee for years holds over his term he is become Tenant at sufferance and such a Tenant shall not pay Rent for it is the folly of his Lessor to suffer his Lessee at sufferance to continue possession of the Land after his term so as every Tenancy at sufferance is made by the Laches of the Lessor which Laches cannot be imputed to the Queen therefore here this Lessee when the Condition is broken is not a Tenant at sufferance nor shall have the profits of the Lands to his own use but the Law shall account him to be a Bailiff of his own wrong and so be accountable to the Queen but no Intruder till Office be found and that appears in our Books 1 H. 7. 17. The King's Tenant dieth his Heir within age if any entreth into the Land of the Heir he shall not be an Intruder untill Office found but the Heir or a stranger who entreth before Office and takes the profits
shall be brought by Process into the Exchequer to make their Accounts and to answer the issues and profits but if he intermeddle after Office he shall be an Intruder Tenant of the King alieneth without licence by that the King is to have the profits untill he compound with the King and purchaseth his pardon and if the Feoffee taketh the profits after the Alienation he is a Pernor of the profits and shall answer for them but he is not an Intruder untill Office found Tenant of the King is attainted of Felony the King is entitled to the Land from the time of the Felony committed yet if he take the profits untill Attainder he is not an Intruder but he taketh the profits without Title therefore he is Bailiff of his own wrong and so accountable to the King. And it is not a new thing that a Conveyance or an Estate shall be void as to the Right onely and not as unto the Possession The Statute of Doms West 2. finis ipso jure sit nullus i. as to the right of the Entail yet as unto the possession the issue in tail is bound untill he hath recovered it by a Formedon Vpon the Statute of 21 H. 8. cap. 13. by acceptance of another Benefice against the said Statute the first Benefice shall be void c. yet the same shall not be construed so as to possession but that the same shall remain with him untill it be taken away from him The Queen leaseth for years Proviso that if the Lessee commit Waste the Lease shall be void when first Waste is done the Lease is determined in Right but not as to the possession before Office finding the Waste So if the Condition be for the building of a House for by the breach of the Condition the Lease as unto the right and interest is determined and after Office found it shall revest the possession also And if a Lease of the King expire by effluction of time and such effluction appeareth here of Record if the Lessee in such case continueth his possession he shall be an Intruder Sir Robert Chester's Case Dyer 4. Eliz. 211. Sir Robert Chester was Receivor of the King by Patent upon condition to render Account yearly at such a day and before such a day to pay the arrearages the condition is broken the Patent was void without Office thereof found but yet it is not altogether void for a Scire facias shall be brought against the Patentee The King leaseth unto A. his Manor of D. and after he leaseth also to the said A. his Manor of S. Proviso that if the Lessee doth not surrender his first Lease of the Manor of D. at such a day that then the latter Lease of the Manor of S. shall be void The Surrender is not made now the Lessee if he continue his possession in the Manor of S. after he is an Intruder Now is to see of what effect the Office is not to make the Lease void but to vest the possession in the King again It hath been objected That as the case is the Office is not to any purpose for the Queen hath granted the inheritance over so as the possession cannot be revested in the Queen by that Office against her own Grant nor can the Queen punish the Lessee as an Intruder for his continuance of the possession after the Office nor can seise the Land by such Office and there is not any such Office for the benefit of a Subject therefore the Office is meerly void Let us compare our Case unto the Case of Cessavit The Tenant of the King ceaseth for two years the King grants the Seignory over in fee the Cesser is found by Office the Grantee of the Seignory gains nothing by it but that is not like unto the Case in question for there when the Office is found the Tenant may tender the arrearages for the King is not absolutely entitled by the Cesser because by tender of the arrearages the Tenant may save his Tenancy But in this case after the Condition is once broken there is not any means for the Tenant to save the Forfeiture also the King by his Grant after the Cesser hath not granted the thing which accrued unto him by the Cesser scil the Tenancy but onely the Seignory but in our case the King hath granted the thing forfeited i the land demised and here is a full forfeiture contrary in the case of Cesser And in our Case the King hath granted onely the land demised and not the profits encurred mean between the breach of the Condition and the Grant of the King but these remain to the Queen and to that purpose the Office is good scil to entitle the Queen to these profits And as to that which hath been objected That the Lessee hath always paid the Rent unto the Queen after the Condition broken and hath an Acquittance of the Receipt of it therefore no profits due to the Queen for she hath the Rent in lieu of the profits and it is not reason that the Lessee shall pay an annual Rent and also shall be accountable for the mean profits and so the Office as unto the mean profits which in truth upon the matter aforesaid are not due unto the Queen is void and then altogether void quia nihil operatur To that he answered That the King shall not be bound off the mean profits in that case by the payment of the said Rent for by intendment the true annual value of the Land is more than the Rent reserved and it is not reason but that the Queen shall be answered of the surplusage or overplus above the Rent and therefore the Office entituling the Queen to part of the profits is good enough Tenant of the King for life or for years makes a Feoffment in Fee although that by this Act he cannot pluck any thing out of the King yet because he hath attempted to do such a wrong it is a forfeiture and the Lease for years utterly extinct by it for it cannot be in the Feoffor against his own act by which he hath departed with all his Interest c. And the Feoffee cannot have it for if he hath any thing it ought to be a Fee-simple or nothing at all and a Fee-simple he cannot have for that remains in the King and so neither have Estate then is all in the King and the King hath Title to have the profits c. But put case that after the Feoffment the King grant over the Land in Fee and after that tortious Feoffment is found by Office he who accupieth the Land after the forfeiture untill Office be found shall be occountable to the King for the issues and profits c. as Pernor of the profits or Baily of his own wrong and he who occupieth the Land after the Office shall be punished as an Intruder There was a Case very late in this Court betwixt Sir Tho. Henage and one Hungate which was thus Sir
Tho. Henage Hungate's Case the Queen leased for years unto Hungate provided that he should not do Waste Waste is done the Queen granted the Reversion to Sir Tho. Henage Office is found the Grantee entred and his entry was adjudged lawfull and that the Queen should have the mean profits from the time of the Waste done untill the time of the Grant. Some say Sir Walter Mildmay's Case that that case was not adjudged but compounded And he vouched Sir Walter Mildmay's Case The Lord Sturton held Lands of the Queen in Knights-service and was attainted of Felony by which the Lands escheated to the Queen who granted those Lands and it was holden that the Queen should have the mean profits betwixt the time of the Felony committed and the Grant. And after in the principal Case Iudgment was given for the Plaintiff scil the Patentee of the Queen against the Lessee who cast in a Writ of Error and by his Council prayed That the Writ of Error be not broken open untill the Iudgment be entred Manwood The Iudgment hath reference and relation unto the first day of this Term and therefore do not doubt of that CLXXIX Sted 's Case Mich. 32 Eliz. In the Exchequer 3 Len. 259. STed of Great Melton in the County of Oxford was assessed to 7 s. for Fifteens and upon refusal to pay it the Collectors distrained the Beasts of Sted and sold them Sted brought Trespass thereupon in the King's-Bench and the Collector exhibited his Bill into this Court against Sted who shewed by his Council That the Statute of 29 Eliz. which enacted this Fifteen provideth That the said Fifteen shall be levyed of the movable Goods and Chattels and other things usual to such Fifteens and Tenths to be contributary and chargeable and shewed farther that the Cattel distrained were tempore districtionis upon the Gleab Land of a Parsonage presentative which he had in Lease which Gleab Land is not chargeable usually to Fifteens granted by the Temporalty nor the Chattels upon it But it was the Opinion of the whole Court Although that the Parson himself payeth Tenths to the King yet the Lay-Farmor shall pay Fifteens and his Cattel are distrainable for it even upon the Gleab Land of the Parsonage and therefore it was adjudged that in the principal Case the Distress and Sale were good and lawfull CLXXX The Dean and Chapter of Winsors Case Mich. 32 Eliz. In the Exchequer 3 Len. 258. IN this Case it was moved If one hath a Rectory impropriate and by the Statute of 26 H. 8. cap. 3. is to pay an annual Rent for the same in the name of a Tenth and by that is discharged of Tenths and first fruits If he shall have the Privilege of the Exchequer for he is to pay the same sum yearly And the Barons were of Opinion that he should not for so every one who is to pay any Tenths or first fruits should draw another who sueth him into the Exchequer and so all Controversies concerning Tithes and Parsonages should be drawn hither which should be a great prejudice to the Spiritual Courts But Egerton Conier's Case Solicitor vouched a Case scil Conier's Case where the King gave a Parsonage to a Priory in Frankalmoign and the Tithes thereof being withdrawn the Prior impleaded him who withdrew his Tithes in the Exchequer and in that Case it was holden that the Prior should have the Privilege for the King is in danger to lose his Patronage or rather his Foundership if the Rectory be evicted Gent Baron The Tenant of the King in chief or he who pays first fruits or he who holds of the Queen in Fee-Farm shall not have in such respect the Privilege here Quaere CLXXXI Cony and Beveridge 's Case Mich. 30 Eliz. In the Common Pleas. 3 Len. 216. IN Debt upon a Bond the Case was That the Plaintiff leased unto the Defendant certain Lands lying in the County of Cambridge rendring Rent and afterwards the Defendant became bounden to the Plaintiff in a Bond for payment of the said Rent upon which Bond the Plaintiff brought an Action of Debt in the County of Northampton to which the Defendant pleaded payment of the Rent without shewing the place of payment and upon payment they were at issue and found for the Plaintiff by Nisi prius in the County of Northampton In Arrest of Iudgment it was moved that the issue was mis-tryed for here the payment of the Rent being pleaded without shewing the place of payment it shall be intended that the Rent was paid upon the Land which is in the County of Cambridge See 44 E. 3. 42. Anderson was of opinion that no Iudgment should be given for the cause aforesaid Rhodes and Windham contrary for it doth not appear that the issue is mis-tried because that no place of payment is pleaded and it might be for any thing is shewed that the Rent was paid in the County of Northampton CLXXXII Berry and Goodman 's Case Trin. 30 Eliz. In the King's-Bench IN an Ejectione Firmae upon a special Verdict the point was Ow. 95 96. One intruded upon the possession of the Queen into Lands in Kisgrave in Suffolk and during this Intrusion the Queen granted these Lands to A. B. by her Letters Patents and the Patentee before any Entry made in the said Land granted the same over Some held that the Grant was good for the Intruder had gained nothing against the Queen and by the Grant of the Queen and the assignment over nothing accrued to him and where a man hath possession of Lands his continuance therein cannot gain to him any interest or increase his Estate without some other act done of later time If the Guardian do continue in possession after the full age of the Heir he is not a Disseisor nor hath any greater Estate in the Lands and upon the Book of 21 E. 3. 2. this Case was collected The Tenant of the King dieth his Heir within age a stranger intrudes the Heir at full age sueth his Livery out of the King's hands the Intruder dieth in possession the same descent shall not take away Entry Coke contrary The Intruder cannot be Tenant at sufferance for at first he enters by wrong and none can be Tenant at sufferance but he who comes in by Title And it is clear That the Intruder by his first Entry doth not gain any Estate in possession upon which he can have an Action of Trespass but after the Grant of the Queen he hath presently Fee by wrong 8 H. 4. 129. A stranger enters upon the King to which he hath right in the right of the Ward yet the Freehold doth remain in the Heir And he said that if A. levyeth a Fine to B. sur Conusans de droit c. now the Conusee hath possession in Law but not in fact and if before the entry of the Conusee W. entreth and dieth seised he hath no remedy for he had not possession
who 37 H. 8. levied a Fine of the said Manor without Proclamations to two strangers to the uses according to the said agreement and before any assurance made by the said Lord the said Lord was attainted of Treason by which all his Lands were forfeited to the King And afterwards the said Andrew Bainton made a suggestion to Queen Mary of all this matter and upon his humble Petition the said Queen by her Letters Patents reciting the said mischief c. Et praemissa considerans annuens Petitioni illius granted to him the Manor aforesaid and farther De ampliori gratia sua did release to the said Andrew Bainton all her right possession c. which came to her Ratione attincturae praed vel in manibus nostris existant vel existere deberent after which 5 Eliz. Andrew Bainton levied a Fine to the Plaintiff with Proclamations and died without issue and the Defendant as issue in tail entred Puckering Serjeant First it is to see if by the words of the Patent of Queen Mary viz. De ampliori gratia c. the Reversion in Fee which the Queen had shall pass or not Secondly Admitting that the Reversion doth not pass then if the Fine levied by Andrew Bainton 5 Eliz. to the Plaintiff the Reversion being in the Queen be a bar unto the issue in tail For as unto the first Fine levied 37 H. 8. which was without Proclamations the same shall not bind the issue in tail neither as to the right nor as to the Entry for it is not any discontinuance because the Reversion is in the King as of things which do not lie in discontinuance as Rent Common c. for such a Fine is a Fine at the Common Law and not within the Statute of 4 H. 7. and such Fine is void against the issue But if such a Fine without Proclamation be levied of a thing which lieth in discontinuance then such a Fine is not void but voidable by Formedon and therefore this Fine in the Case at Bar being levied without Proclamation of Lands entailed whereof the Reversion is in the King at the time of the Fine levied shall not bind the issue and by such Fine the Conusee hath nothing but a Fee determinable upon the life of Tenant in tail which Fee was forfeited to the Queen by the Attainder of the Lord Seymore and that the Queen moved of pity did restore the same to A. B. in recompence for the Indentures of themselves were not sufficient to raise any use See 1 Mariae Dyer 96. As to the first point it seems that nothing passed of the Reversion for the Grant hath reference to the words All her Right Possession c. which came to her ratione attincturae and all the residue of the Grant ought to have reference to that to the ratione attincturae which was the foundation of the whole Grant and here the intent of the Queen was not to any other intent but onely to restore A. B. to the said Manor or to his former Estate in it and nothing appears in the Letters Patents by which it may appear that the Queen was knowing of her Reversion which she had by descent and therefore the same cannot pass by general words If the Queen grants the Goods and Chattels of all those which have done any Trespass for which vitam amittere debent the Goods of him who is attainted of Treason shall not be forfeited to the Grantee by such general words 8 H. 4. 2. The King grants omnia Catalla Tenentium suorum qualitercunque damnatorum the same shall not extend to the Goods of him who is condemned of Treason See 22 Ass 49. So in our Case the Patent shall not serve to two intents but to a restitution of the Manor and then nothing passed by this Patent but the Fee determinable which was conveyed to the Lord Seymore and forfeited by his Attainder Then we are to see how after this grant the said A. B. is seised And he said That he shall be in of the said Fee determinable and not of the Estate tail against his own Fine and then if he be not seised by force of the Entail at the time of the Fine levied 5 Eliz. the same Fine cannot bind the tail But admit that at the time of the second Fine levied he was in of an Estate in tail yet the same Fine shall not bar his issue For first this Fine cannot make any discontinuance because that the Reversion in Fee is in the King which is not touched by the Fine See the Case of Sanders where A. makes a Lease to begin at a day to come and afterwards levies a Fine to a stranger with Proclamations the five years pass and afterwards at the day of the Commencement of the Lease the Lessee enters his entry is lawfull and he shall not be bound by the non-claim And so it was adjudged 21 Eliz between Sanders and Starky After the making of the Statute of 4 H. 7. of Fines it was much doubted if the issues of common Tenants in tail should be bound by a Fine with Proclamation forasmuch as upon the death of their Ancestours they were as new purchasors per formam doni and therefore it was provided by the Statute of 32 H. 8. that the said Statute of 4 H. 7. should extend to such common Entails but there was no doubt of the Estate tail of the Gift of the King and see betwixt Jackson and Darcy Mich. 15 and 16 Elizab. Rot. 1747. in a Partitione facienda the Case was Tenant in tail the Remainder to the King after the Statute of 32 H. 8. levied a Fine with Proclamations and adjudged that that should bind the issues and the Act of 32 H. 8. doth not extend but where the Reversion is in the King but no mention is there of a Remainder because the words of the said Act are general of all Tenants in tail the makers of the said Act perceiving that it might be a doubt that the generality of the said words might exclude Estates tail of the Gift of the King they have restrained the words in a special manner as appeareth by the last words of the same Act Nor to any Fines heretofore levied or hereafter to be levied by any person or persons of any Manors c. before the levying of the said Fine to any of his or their Ancestors in tail by Letters Patents or Act of Parliament the Reversion whereof at the time of the levying of such Fine was in the King and so such Estates are excepted and that in such Cases where such Fines are levied they shall be of such force as they should have been if the said Act had not been made and therefore he conceived it appeared at the said Parliament That such Estate tails of the Gift of the King were not bound bâ— 4 H. 7. for otherwise that Proviso or Exception had been frivolous Walmsley Serjeant to the contrary and he agreed That the
That William Heydon was seised of the lands and enfeoffed him And upon Ne enfeoffa pas the parties were at issue and it was found by special Verdict That the said William Heydon was seised and leased the Lands to the Defendant for years and afterwards he made a Deed of Feoffment to the same Lessee of the same Lands in Fee by the words of Dedi concessi with a Letter of Attorney within the said Deed to make Livery to the Lessee and the Deed of Feoffment was delivered to J. to deliver the same to the said Lessee who delivered the same accordingly The Lessee delivered the same to the Attorney named in the Deed who made Livery accordingly And it was moved by the Council of the Plaintiff That upon all this matter here is not any Feoffment And by Walmesly Serjeant This Deed so delivered took its effect presently as a confirmation and then the Livery and Seisin comes too late for as soon as the said Deed was delivered to the Lessee for years the Law gave to it its operation to this effect To vest the Fee and the Freehold in the Lessee by way of confirmation See for that Littl. 532 533. But the whole Court was of a contrary opinion for it is in the election of the Lessee to take the Conveyance as a Feoffment or as a confirmation And here it appeareth upon the Deed that the intent of both parties was That the Lessee should take by way of Feoffment and not of confirmation for otherwise to what use should be a Letter of Attorney inserted in the Deed And here the Lessee hath liberty to make his election how he will take either by Feoffment or by confirmation which election he hath determined by the acceptance of the Livery And by Anderson If tenant in tail be disseised and makes a Charter of Feoffment and delivers the same to the Disseisor who delivers the same to the Attorney named in the Charter who makes Livery accordingly here is a good Feoffment and a discontinuance and afterwards after many motions made and day given to shew cause Iudgment was given that the Plaintiff should be barred CCXLII. Rooke and Denny 's Case Trin. 28 Eliz. In the Common-Pleas IN an Action upon the Case by Rooke against Dennis for misusing of the Plaintiff's Horse by occasion of which misuse the said Horse became blind of one eye and gall-back'd The Plaintiff counted That the said Horse was stolen by three Felons after whom the Plaintiff made fresh suit and that the Felons were apprehended and attainted at his suit because Iustice Windham Hetley's Rep. 64. Rolls 809. More 572. Hetley's Rep. 64. and that the said Horse came unto the hands of the Defendant who misused it Ut supra The Defendant said that before that and the said Attainder of the said Felons the said Felons had waived the said Horse within his Manor in which Manor he had waife and estray c. And it was holden by the Court that the same was no Plea without traversing the fresh suit whereof the Plaintiff hath declared for by the fresh suit the property of the Plaintiff in the said Horse was preserved and so upon that misuser of the Horse by the Defendant an Action well lyeth and Iudgment was given for the Plaintiff accordingly CCXLIII Pretiman and Cooke 's Case Hill. 29 Eliz. In the King 's Bench. IN Ejectione firmae The Case was Ante 129. 1 Cro. 52. 3 Len. 180. That one Hawkins was seised of three Messuages in Bury and had issue Robert a son and Christian and Joan daughters and by his Will devised his three Messuages to his wife for life the remainder of one of them to Robert his son and his heirs and the remainder of another of them to Christian his daughter and her heirs and the remainder of the third Messuage to Joan his daughter and her heirs And farther willeth That if any of his said three issues should die without issue of his or her body that then the other surviving shall have Totam illam partem betwixt them equally to be divided The Devisor died the wife died one of the daughters died having issue the son died without issue the sister surviving entred into the whole part of Robert the son and died her husband held in the land as tenant by the Curtesie and the question was If the surviving daughter should have all the part of him that died without issue or she and the issue of the other daughter Coke The survivor shall have the whole And he said that the Devisees have an Estate in tail for the Fee doth not vest in them for it is incertain which of them shall survive but when one surviveth then he shall not have for life but in Fee for the words Totam illam partem goe as well to all the Estate as to all the things A. tenant for life the remainder to B. in tail the remainder to the right heirs of A. A. grants Totum statum suum both the Estates pass and the Grant includes the whole See 41 E. 3. Fitz. Br. 541. In Ravishment of Ward supposing the ravishment of two daughters Quarum maritagium ad ipsum pertinet and it was challenged because he doth not say Maritagia but the challenge was not allowed and he said That if a man deviseth his land wholly to A. that he hath a Fee-simple See the Case H. 28 Eliz. the Case between Higham and Harwood And Coke said That they had by this Devise a Fee-tail with a Fee-simple Expectant each of them severally in the Messuage to them limited Golding Each of the Devisees hath an Estate-tail in the Messuage to them devised and but an Estate for life in the Messuage which is to accrue upon the death without issue c. For no Estate is limited expresly nor what Estate the survivor shall have for here are not any words which do import a Fee-simple as according to Littleton imperpetuum or to do what he will with c. See for that 22 E. 3. ad Terminum qui praeteriit but here are onely bare words of which no farther construction can be made but for life And as to the words Totam illam partem the same doth not extend farther than if he said Partem suam And he said that nothing vests in him who survives for there ought to be two to take by the survivor or otherwise nothing shall accrue to the survivor for the words of the Devise are aequaliter inter eos dividend and that which accrues by survivor shall be divided betwixt two otherwise nothing shall accrue And if it cannot survive to two then it shall descend to the issue of the sister who is dead and to the surviving daughter and they shall be tenants in common and not joint-tenants Clench These words Totam illam partem go onely to the house and not to the Estate in it which Shute granted If both the daughters had survived Robert they should have Fee
good answer for they are Pleas onely before the Auditors and not in an Action upon Accompt and farther he said That although the Verdict be found but for part yet it is good for no damages are to be recovered in an Accompt In trespass it is true if one issue be found and not the other and joint-damages be given the Verdict is not good for any part but if several damages be given then it is good as it is ruled in 21 H. 6. Coke 26 H. 8. is That the Plaintiff cannot declare generally of an house Curam habens administrationem bonorum but he must farther say Twenty quarters of Corn or the like c. In the principal Case it is a joint-charge and but one for the shop and goods and he answers unto one onely but he ought to answer to all or else it is no answer at all But Coke found out another thing viz. That there is a thing put in issue which is not in the Verdict nor found nor touched in the Verdict and that was the Verdict of all which is found not to be good and it is not helped by the Statute of 32 H. 8. of Jeofailes I grant that discontinuances are helped by the Statute of 32 H. 8. but imperfect Verdicts are not helped thereby Vid. 205. It was a great Case argued in the Exchequer Chamber and it was Brache's Case An information was against Brache for entring into a house and an hundred Acres of Lands in Stepney He pleaded not guilty The Iury found him guilty for the hundred acres but said nothing as to the house upon which a Writ of Error was brought and Iudgment was reversed and he said it was not a discontinuance but no verdict for part Daniel That was the default of the Clerks who did not enter it and it hath been the usage to amend the defaults done by the Clerks in another Term All the Iustices said That is true if the Postea be brought in and not entred but here it is entred in the Roll in this form Daniel Where I charge one in Accompt with so much by the hands of such a one and so much by the hands of such a one although there be but one Absque hoc to them all yet they are as several issues The Court answered Not so unless there be several issues joined to every one of them But by Gawdy Iustice If there be several issues and the one be found and the other not no Iudgment shall be given Clench Iustice In the principal Case It is not a charge of the goods but in respect of the shop therefore that ought to be traversed Shute Iustice The Traverse of the shop alone is not good Egerton the Queen's Solicitor said That the Books might be reconciled and that there needed not a Traverse to the goods for the Traverse of the shop Prout is an answer to all But now he takes issue upon the goods onely which issue is not warranted by the Declaration and he said That if one charge me as Bailiff of his goods ad Merchandizandum I shall answer for the increase and shall be punished for my negligence But if he charge me as his Receiver ad computandum I shall not be answerable but for the bare money or thing which was delivered CCXLVI Mich. 29 Eliz. In the Common-Pleas Postea 215. IN Trespass for taking of goods the Defendant justified as Bailiff to J. S. The Plaintiff by Replication saith That the Defendant prest his Cattel of his own wrong Absque hoc that he is Bailiff to J. S. And by Anderson 1 Leon. 50. If one hath good cause to distrain my Cattel and a stranger of his own head without any warrant or authority takes my goods not as servant or Bailiff to another and I bring Trespass against him he cannot excuse himself by saying that he did it as Bailiff c. for once he was a Trespassor but if one do distrain as Bailiff although that in truth he be not Bailiff if afterwards he in whose right he justifies assents to it he shall not be punished as a Trespassor for this assent shall have relation unto the time of the distress taken which Periam concessit and also Rhodes A. distrains and being asked for what cause he distrains and he assigns a cause which is not sufficient and afterwards an Action is brought against him 3 Co. 26. he may avow the distress for another cause CCXLVII. Mich. 29 Eliz. In the Common-Pleas THE Case was That the Queen gave Lands in tail to hold in Capite and afterwards granted the Reversion Windham In this Case the Tenure is not incident to the Reversion but is in respect of the person and therefore the Tenure in Capite doth remain and the Donee shall hold of the Queen as in gross And also the Grantee of the Reversion shall hold of the Queen in Capite and so two Tenures in Capite for the same Lands See 30 H. 8. Dyer 45. If the Queen in this cause had reserved a Rent upon the Gift in tail the same should go with the Reversion CCXLVIII Dighton and Clark 's Case Mich. 29 Eliz. In the King's-Bench DIghton brought Debt upon a Bond the Condition of which was That whereas the Plaintiff was in quiet possession of such lands If now neither J. S. nor J. B. nor J. G. did not disturb the Plaintiff in his possession of the said lands by any indirect means but by due course of Law That then c. that Defendant pleaded That neither J. S. nor J. D. or J. G. did disturb the Plaintiff by any indirect means but by due course of Law upon which there was a demurrer Godfrey The Plea in Bar is not good for there is a Negativa pregnans scil a Negative which implies an Affirmative See 21 H. 6.9 In a Writ of Entry Sur Disseisin the Defendant saith That the Demandant by his Deed after the Darrein continuance did confirm and ratifie the possession of the Tenant c. The Demandant said Not his Deed after the Darrein continuance and the same was holden to be Negativa pregnans See more there and see also 5 H. 7. 7. And see farther 39 H. 6. 8 9. Another Exception was taken to the Plea in Bar because he hath pleaded That neque J. S. neque J. D. neque J. G. had disturbed the Demandant by any indirect means but onely by due course of Law and that issue cannot be tried not by the Countrey for they cannot know what is a due course of Law and by the Court it cannot be tried for the Defendant hath not certainly shewed by what due course of Law the Demandant hath been disturbed which see 22 E. 4. 40 41 c. The Lord Lisle's Case In Debt upon a Bond the Condition was That if the Defendant before such a day or any other for him and in his name come to B. and there shew unto the Plaintiff or one of his
J. S. he was constrained to pay the money J. S. promised for the same consideration to repay the money 286 D DIminution 3 Distress for Rent 8 Debt 10 26 33 49 88 90 122 126 136 150 153 162 163 172 181 189 200 208 248 Debt for Rent 14 28 67 121 Dower 15 85 174 238 Devise 16 92 123 165 171 198 239 243 276 279 280 287 Debt upon Recognizance 24 Descent no plea nor any title against the Queen 37 Debts of the King by the Statute of 33 H. 8. 39 Disseisin 80 Distress 179 Detinue 201 Discharge of a promise a good plea upon an Assumpsit 270 E ERror 2 3 4 77 86 100 115 132 135 160 161 222 231 244 251 255 256 263 Entry of Records 3 Estopell 3 17 Extent 20 75 167 Exceptions to a Writ 47 Extendi facias sued out and the Liberate not returned if good 65 Escape an Action of Debt brought upon it 112 Execution upon a Statute and the Sheriff voluntarily sets him at large 117 Execution 202 Enquest taken at the instance of the Plaintiff 203 Ejectione firme 250 Exposition of Statutes do belong unto the Queen 's temporal Courts 267 F FEoffments to Uses 7 25 118 183 194 218 233 257 282 285 False imprisonment 43 Fine 38 73 139 169 191 206 263 Formedon 84 196 Feoffment in Fee of Lands parcell of the Dutchy of Lancaster how and of whom the Tenure shall be 184 Fines in Courts 219 G GRant de Advocatione Ecclesiae what passeth 106 Grant of Lands of the Dutchy of Lancaster by the King unto another Tenend in Fee-farm if this Land shall be holden of the King in Capite or holden of the Dutchy 197 Gift where void both by Common-Law and the Statute of 13 Eliz. 284 H HEriot 10 Habeas Corpus not well returned day given to amend it 213 I JUdgment against Bail 2 Indictment upon the Statute of 23 Eliz. of Recusancy 6 Justicies no Original but a Commission to the Sheriff 41 260 Information upon the Statute of 18 H. 6. cap. 17. concerning the gaging of vessels of wine 52 In consideration that the Plaintiff would stay an intended suit in Chancery promised that if the Plaintiff can prove that the father of the Defendant took the profits of the Lands in question that he would pay to him for all the said profits 133 Information upon the Statute of Usury 144 In consideration of marriage the Defendant promised to pay to the Plaintiff 100 l. 146 joint-Joint-tenants in Fee grant a Lease for years rendring Rent and one dies how the Rent shall be divided 148 In consideration that the Testator would forbear the payment of a sum of money for a week he promised to pay him within a week if the Action will lie for the Executors 149 Judgment not to be reversed but by Error or Attaint 154 Information upon the Statute of 27 Eliz. cap. 4. by the party grieved The Plaintiff was non-suit yet shall not pay costs and damages 156 Indenture delivered at another day and not the day of the date 157 Indictment for inclosing of Common vi armis c. not good 159 Intruder dying in possession the same descent taketh not away an Entry 182 Indictment upon the Statute of 23 Eliz. of Recusants 204 Indictment upon the Statute of Praemunire of 13 15 R. 2. 225 Indictment upon the Statute of 8 H. 6. of forcible entry 226 232 Indictment for not repairing of a Bridge 227 Indictment for an unlawfull assembly and entry 228 Indictment upon the Statute of 5 E. 6. cap. 4. for drawing of his dagger in the Church 234 Indictment upon the Statute of 5 Eliz. of Perjury 262 Judgment joynt against three will not lie against one of them in particular 277 L LEases 1 40 78 96 102 110 116 119 131 134 169 178 192 207 236 252 253 261 Leet how holden 31 98 266 Love is no consideration upon which to ground an Action 35 Letters Patents Bona Catalla felonum c. 81 Letters Patents of Offices not to be repealed after the death of the Grantor 128 Limitation and Condition with their difference 52 M MAintenance in returning a partial Jury 177 N NUsance for stopping a River with earth by which land was drowned 129 222 Nudum pactum quid 187 O OUtlawry 23 166 Obligation for appearance upon a Latitat where void 103 220 Office found 169 Obligation that the Obligor shall not exercise his Trade within a Town nor within a certain precinct of it void and against Law 259 P PArtition 3 Prescription 13 Property 35 113 Partitione facienda 69 Privilege is not for an Atturney against an Attachment by the custome of London 190 Presentments several make the Church litigious 205 Privilege pleaded for a Lord of Parliament 209 Prohibition prayed to the Court of Admiralty 224 Payment no good Plea without alledging it upon Record 269 Proof how to be made 273 Q QVare Impedit â—â— 83 Quo Warranto 266 R REceit of the wife 11 Rectory Quid 13 Rent charge 21 185 186 Replevin 29 58 82 87 107 158 168 170 211 274 281 Rents and Services 57 Reparations 72 Replicando of his own wrong how construed 108 Remainder in tail who was attainted of Felony 169 Recognizance of good behaviour 199 Recovery in a Writ of Entry 214 Return of a Devastavit upon a Fieri facias a motion to have an Elegit 235 Replication where good by Executors 265 S SEals 27 Special Plea to an English Bill if it may be relinquished 38 Sheriff must deliver all the prisoners in his custody over to his successor 76 Scire facias against the bail in an action of Debt to which was pleaded the death of the Defendant before Judgment given against him 125 T TEnancy several where no good Plea 9 Trover and conversion 22 50 217 278 Tythes 30 32 93 95 98 105 124 180 216 Tail. 51 54 63 170 247 Trespass against the Warden of the Fleet brought in the King's Bench 56 Tenant per auter vye after the death of Cestuy que use holdeth over if he be a Disseisor 59 Tenant at will if he may grant Copihold Estates to Copiholders 59 Trespass upon the Statute of 8 H. 6. of forcible entry 70 Trespass for an assault and battery 104 Tender of rent if refused where good and where not 173 Trespass by one Administrator against another for taking away the goods of the intestate 188 Trespass Quare clausum fregit and new assignment pleaded 230 Toll no lands to be discharged of it but lands Socage onely 240 Trespass Quare clausum fregit 241 Trespass for taking of goods and the Defendant justifies as Bailiff to J. S. 246 Trespass for breaking of the Plaintiffs close and for killing his Conies 254 Trespass for cutting down of four Oaks and the Defendant pleads that he and all those whose Estate he hath c. Habere consueverunt rationabile estoverium suum for fuel c. 258 W WRit of entry in the Per 9 Will of the Request of Land and the name of the Devisor not in it if good 44 Waste 45 46 62 210 282 Writ of Annuity 68 Wager of Law 143 Writ of Enquirie of damages if too little damages be found no other Writ pro meliore Enquir can be granted 272 Writ of Entry Sur Disseisin 283 FINIS
although he was defrauded but of one Heriot onely as if a man be indebted to me in 20 l. and he makes such a fraudulent Deed of his goods of the value of 2000 l. although I be defrauded but of the 20 l. yet he shall forfeit the whole value of the goods so conveyed Manwood Iustice was of opinion that the Plaintiff should recover the value of one of the Horses and the Gift by the first branch is void as to the Plaintiff but for one of the Horses onely and not for all the Horses contained in the Gift for no more than one Horse was fraudulently given And as by the first branch the Gift is void but for one Horse so by the second branch the penalty extends but unto one Horse for the fraud extends but to one Horse and no farther And this Action is not a popular Action but extends onely to the party grieved And of the same opinion was Dyer chief Iustice and he confessed the Case put by Mounson Iustice where the Debtor of 20 l. makes a fraudulent Deed of his goods of 3000 l. c. for the person of the Debtor is chargeable and peradventure goods of the value of 2000 l. may be put in execution for 100 l. but here the person is not charged for the Heriot Barham Serjeant the fraud goes to the whole scil to all the Horses for although the Plaintiff is to have but one Horse yet he is to have the choice of all the Horses which of them he will have for the best Beast and because the choice goes to all the thirty Horses and by this fraudulent Gift he is defrauded of his election which of the Horses he would have therefore he shall have the value of the whole thirty Horses But Dyer and Mounson said to the Serjeant set a price upon any of the thirty Horses as the best Horse in your election and demand the value of that Horse as forfeit by the Statute and then your election is saved to you XI Gregory 's Case 19 Eliz. In the common Pleas. IN the Assise against Arthur Gregory and his wife at Warwick Assise 1 Len. 86. Key 's steds case cont before Dyer and Barham Iustices of Assise the husband made default and the Assise was awarded by default and the wife came and prayed to be received and the opinion of the said Iustices was that Receipt lay in that Case as in other cases of Praecipe quod reddat Receipt of the wife and therefore the wife was received And now Dyer in Banco demanded of his companions the other Iustices if the Receipt was well granted And by Manwood and Mounson Iustices clearly the Receipt lies For although that the Statute doth not give Receipt but where the Lands in demand are to be lost by such default of the husband and in an Assise the Land shall not be lost by the default of the husband but the Assise shall by taken by default Yet because the husband and wife lose their challenges to the Iury because the Assise is taken by default It seemed to the Iustices and also to the Preignothories that Receipt did well lie in this Case XII 19 Eliz. In the Common Ples IN an Action upon Escape the Plaintiff is nonsuit It was holden No costs upon Nonsuit in an Action upon Escape that the Defendant should not have costs by the Statute of 23 H. 8. Note the words of the Statute i. Upon any Action upon the Statute for any offence or personal wrong supposed to be done immediately to the Plaintiff notwithstanding this Action is Quodam modo an Action upon the Statute i. by the equity of the Statute of West 2. which gives expresly against the Warden of the Fleet yet properly it is not an Action upon the Statute for in the Declaration in such actions no mention is made of the Statute which see in the Book of Entries 169 171. And here is not supposed any immediate personal wrong or offence to the Plaintiff And an Action upon the Case it is not for then the Writ ought to make mention of the Escape and that it doth not here and yet at the Common Law before the Statute of West 2. An Action upon the Case did lie for an Escape and so Dyer Manwood and Mounson costs are not given in this Case And by Manwood upon the Nonsuit in an Action upon the Statute of 8 H. 6. the Defendant shall not have costs for that is not a personal wrong for the Writ is dissesivit which is a real wrong Mich. 19 and 20 Eliz. In the King's-Bench Prescription Townsend Table 96. Hern. 709. Tit. Trespass ib. 803. 1 Cro. 898. Rectory quid Jones Rep. 230. IN Trespass for breaking of his Close the Defendant iustified to have a way by prescription over the Land in which the trespass is supposed for carrying of such Tithes Usque ad Rectoriam de D. from such a place And it was holden by Wray and the whole Court that the plea was not good for in pleading such a way there ought to be set forth terminus a quo terminus ad quem And this word Rectory which ought to be terminus ad quem is incertain for a Rectory is a thing which consists of divers things as Glebe Tithes c. But he ought to have said the Parsonage House or other place certain And afterwards it was shewed to the Court that the said Rectory did consist onely of Tithes and so there is not any place certain as Parsonage House Barn c. to which the Tithes have used to be carried for the Tithes have used to be let to farm to divers persons who have carried such Tithes to their own houses and the Defendant is one of the Farmers of the Tithes Wray If your case be such you are to plead in this manner That J. S. is seised in Fee of the Rectory of D. and that time out of mind he and all those c. have used for them and theirs formerly to have a way to carry their Tithes from such a place over the Land where c. unto such a high way and name a way which is the next to the place where the trespass was done the which cause the Defendant pleaded so according to the direction of the Court. XIV Wingfield and Seckford 's Case Hillar 20 Eliz. In the Common Pleas. Debt for Rent Co. 3. Rep. 24. IN Debt for arrerages of Rent upon a Lease for years the truth of the case was That before any arrerages incurred the land Leased was evicted upon an Eigne Title The Defendant pleaded that he owed him nothing If now he might give in Evidence the said eviction was the Question and it was the opinion of Dyer Manwood and Mounson Pleadings that he could not but he ought to have pleaded it especially and they denied the opinion of the Preignothories who said that the Defendant ought to have pleaded the Eviction and concluded
remain in the Feoffees who are put in Trust with it and therefore have interest in the Lands until all the Trusts be performed and therefore the second Wife was advised by her Council to make her Entry in name of the surviving Feoffee and the interest which the Feoffees have in the interim untill the execution of all the uses is a Fee-simple determinable for the whole interest is not devested or driven out of the Feoffees untill the whole Trust be accomplished i. untill all the uses limited upon the Feoffment are executed and have their full perfection And whereas it hath been alledged on the other side That upon the second Feoffment nothing passed out of the Feoffees for which it shall not be said in Law their Livery but that the Attorney shall be said the sole Disseisor As to that I conceive That whatsoever was lost in the Feoffees passed by that Livery If he in Reversion upon an Estate for life makes a Charter of a Feoffment and a Letter of Attorney to make Livery of seisin without words ad expellendas omnes c. if Livery be made by force thereof the Fee-simple shall pass And he cited a Case which was argued before all the Iustices of England reported by himself 2 and 3 Ma. 131. Divers Leases for years were made of the Demeans of an Abby after which the Reversion was granted to the Countess of Richmond for life after which King Edw. 6. granted the Reversion in Fee to the Earl of Warwick who made a Feoffment of all to certain persons to the use of his eldest Son and his Wife for her Iointure with a Letter of Attorney to make Livery and seisin the Attorney made Livery accordingly and by that Feoffment and Livery it was adjudged that the Fee-simple did pass So in our Case upon this second Feoffment a Disseisin is done to D. the first Wife and yet the right of the Feoffees doth pass thereby and although it shall not be taken in Law their Livery yet it shall be adjudged their confirmation because they have joined in the Deed and that shall bind their right to establish the same in the new Feoffees as if the Disseisee join in a Feoffee by Deed with the heir of the Disseisor And as to that which hath been objected that because at the time of the Feoffment the Feoffees had not any thing c. and therefore nothing shall pass and they have likened to the Case where the Father is disseised and the Son and heir doth release to the Disseisor the same shall not bind the heir after the death of his Father The same is not like our Case for there is a great difference betwixt a Release and a Feoffment for if the Son disseise the Father and maketh a Feoffment in Fee in the life of his Father notwithstanding that he had not any right at the time of the Feoffment yet he is bound XXVI Thurkettell and Tey 's Case Trin. 29 Eliz. In the King's-Bench Rot. 342. 1 Cro. 110 111. IN Debt by John Thurkettell against Edw. Tey and Mary his Wife Executrix of Robert Thurkettell the Case was That Agnes Thurkettell Mother of Robert the Testator devised certain Lands to Robert and afterwards devised 40 l. to the Plaintiff John upon condition that the said John Cum requisitus esset acquietaret retaxaret praedict Roberto omnes actiones reales personales querelas c. praedict 40 l. per dict voluntat legatis tantummodo exceptis Agnes died Robert made two Bonds to John The first was endorsed to pay 20 l. parcell of the said Legacy within a year after the death of the said Agnes so as the Plaintiff release according to the will of the said Agnes The second Obligation was with the same condition to pay 20 l. residue of the said Legacy within two years after the death of the said Agnes upon condition to release ut supra and all this matter was pleaded in barr And farther That Robert required the said John to make the Release c. which he refused and they were at issue upon the request and it was found for the Plaintiff i. Quod dict Robert. non requisivit c. upon which Verdict Iudgment was given for the Plaintiff upon which the Defendants brought Error because it appeareth upon the Record here quod Billa praedict prosecuta fuit infra duos annos post mortem dict Agnet sic ante diem solutionis For the second Bond see 46 E. 3. 28. by Finchden and Persay and see there by Persay That if my Writ be brought before the day of payment and doth depend in suit till after the day of payment that my Writ is made good for at all times the Defendant was my Debtor And afterwards in the principal Case the Iudgment was affirmed in the Exchequer-Chamber and note that the day of payment did incurr pendent the Writ XXVII Lightfoot and Butler 's Case 29 Eliz. In the Exchequer IT was said in this Case by the Solicitor General That if one holdeth of the Queen as of her Manor he shall not have the privilege of the Exchequer for that cause But if the King grants Tithes and thereupon reserveth a Rent nomine decimae and a Tenure of him there he shall have the privilege The principal Case was Co. 4. Inst 118 119. that one of the parties claimed the Lands in question as his Freehold but holden of the Queen as of such a Manor and the other claimed it as Copyhold holden of the same Manor And the Freeholder did suggest in the Exchequer That the demands of the Manor are not indifferent Clark Baron If it be so this Court shall have jurisdiction Manwood If the matter pass against you wrongfully wherefore may you not have an Assise And the Case of Beaumorris was cited but I remember not to what purpose i. The Mayor and Commonalty of Beaumorris were Patrons of a Chantry and they and the Chantry Priest made a Lease for years by Indenture in the end of which was this Clause In cujus rei testimonium tam the Priest quam the Mayor and Commonalty have put their common seal and it was moved that there was not any seal for the Priest for he could not have a common seal with the Mayor and Commonalty Clark Twenty men may seal with one seal and they may also seal with one seal upon one piece of Wax onely and that shall serve for them all if they all lay their hands upon the seal together Manwood They may all seal with one seal but upon several pieces of Wax Gent when many are parties to a Deed the words are Sigilla omnia which cannot be aptly said in this Case where all seal upon one piece of Wax XXVIII Barns and Smith 's Case 29 Eliz. In the Exchequer EManuel Barns Executor of Barns late Bishop of London 3 Len. 171. brought Debt for arrerages of Rent reserved upon a Lease for years of certain Mines demised
well in the case of a Subject as in the case of the Queen That nothing can be an Inducement to a Traverse but such a thing as is Traversable and here the Descent induceth the Traverse being not Traversable in this case Also it was holden That the place where the party dieth seised needs not to be shewed in pleading a Descent And afterwards Manwood at another day mutata opinione conceived That as to plurima Recorda there needed no Traverse although there were many presidents to the contrary Diu ante transgressionem fieri sup is a good Plea in Trespass in Case of a common person not in the King's Case diu ante Intrusionem c. XXXVIII Robinson and Robinson 's Case 31 Eliz. In the Exchequer Chamber IN the Case betwixt Robinson and Robinson in the Exchequer-Chamber by English Bill concerning the Manor of Draiton Basset The Defendant pleaded in Bar a special Plea to which the Plaintiff replyed and afterwards the Defendant when he should have Rejoyned would have relinquished his special Plea and pleaded the general Issue Manwood In the Common Pleas and King's Bench and in the Court of Common Pleas in the Exchequer before the Issue joyned the Defendant might relinquish his special Plea and plead the general Issue for the Pleadings there are in paper until Issue be joyned and therefore at any time before Issue joyned the Plea might be withdrawn But in the Chancery Court of Requests and here all Pleas put in are in Parchment and filed and therefore it cannot be so done and therefore here if the Plea be once ingrossed into Parchment and filed the Defendant cannot relinquish his Plea and plead the general Issue contrary where the Plea is yet in Paper Gent Baron That if upon the Plea in Paper an Issue be offered with an Absque hoc c. the other party cannot relinquish it although it be but in Paper But afterwards the Barons asked the Clarks what was their course in such cases who answered That if the Plea be in Parchment and upon the File it shall never afterwards be taken from off the File but with the consent of the parties and Order of the Court. And afterwards Manwood with the assent of the rest of the Barons gave a Rule That the Defendant should rejoyn to the Replication or otherwise a Nihil dicit to be entred XXXIX The Lord Cromwel 's Case 31 Eliz. In the Exchequer IN the Case of the Lord Cromwel upon the Statute of 33 H. 8. for levying of the King's Debts A Debt came to the Queen by Attainder of the Creditor upon which an Extent issued against one of the Ter-tenants liable to the Debt and not against all It was moved That upon a branch of the said Statute all the Ter-tenants ought to be charged But it was the Opinion of divers that such a Debt which cometh to the King by Attainder is not within the said Statute for although the Attainder is by a Iudgment yet Debt by Iudgment it cannot properly be said but where a Debt is recovered by Iudgment And that was the Case of the Lord Norris for a Debt due to Heron by the Lord Williams which Heron was attainted XL. Machel and Dunton 's Case Hill. 29 Eliz. Rot. 631. in the Common Pleas. IN Ejectione Firmae the Case was That one Machel 1 Crō 288. Owen 54 92. Poph. 8. Alderman of London was seised and Leased for years with clause of re-entry for non payment of Rent and in the Indenture of Lease there were divers Covenants on the parts of the Lessee And afterwards the said Machel by his Will willed That the Lessee should retain the Land-demised for thirty one years reckoning the years of the first term not expired as parcel of the said term of thirty one years yielding like Rent and under such Covenants as the Lessee held the former Lease and by the same Will devised the Inheritance over to a stranger It was first moved If here the Lessee for years had a new interest accrued to him by the Will If it shall vest in him as an interest by it self or that both Estates as well the former Lease as the Estate for years devised by the Will should be united by way of Surrender Another matter was because that the Devise is yielding such Rent and under such Covenants c. Now because the meaning of the Devisor was That the Devisee should hold over the Land for the term encreased as he held before if here the Law shall give construction to this Devise as near the intention of the Devisor as it may be and so construe the words of the Will to amount to a condition But by the Opinion of the whole Court the words of the Devise cannot make a Condition for a Condition is a thing odious in Law which shall not be created without sufficient words Another matter was moved If the Fee-simple should pass by this Devise in point of Reversion or Remainder And by the better opinion of the Court it shall pass in point of Reversion for if it should be a Remainder then the Rent which is reserved upon the Lease by the Will shall not be incident to such Remainder and therefore the Law shall qualifie it into a Fee-simple Another matter was moved Admitting that the words of the Devise ut supra are Condition If here in this Case there be a Grantee of the Reversion intended within the Statute of 32 H. 8. As A. seised of Lands in Fee deviseth them to B. for years rendering Rent with clause of Re-entry and by the same Will deviseth the Reversion to another If because that it was never in the Devisor a Reversion or a Condition If the Devisee be within the said Statute to take advantage of it And the Opinion of the whole Court was That the Devisee of the Fee-simple should take advantage of this Condition XLI Trin. 29 Eliz. In the Common-Pleas Postea 210. A Justicies issued forth to the Sheriff of H. for the Debt of 40 l. and the same Plea was held and determined before the Vnder-Sheriff in the absence of the Sheriff It was moved by Puckering Serjeant If a Writ of Error or a false Iudgment lieth in this Case And it was resolved by the Iustices That the Sheriff himself in his person ought to hold Plea of a Justicies and if he make a Precept or Deputation to another it is meerly void 34 H. 6. 48. See the Case there abridged Fitz. Bar. 161. And a Justicies is not an Original Writ but a Commission to the Sheriff to hold Plea above 40 s. And upon a Iudgment given upon a Justicies a Writ of false Iudgment lieth and not a Writ of Error See 7 E. 4. 23. And it was the Opinion of the Lord Anderson That the Iudgment given in the principal Case was utterly void coram non Judice XLII The Queen and Jordan 's Case Trin. 29 Eliz. In the Exchequer 11 Co. 89 90 c.
ratione calumniae praedict ac praedict jurament tenebat proficua inde provenientia diutius quam aliter si praesens Triatio habita fuisset sine aliqua calumnia tenere potuisset See the Statute of 5 Eliz. against Perjury the words are grieved letted or molested c. LIV. George ap Rice 's Case Mich. 30 Eliz. In the King's-Bench George ap Rice Tenant in Tail after possibility of Issue extinct assigned his Estate to one A. against whom he in the Reversion brought a Quid juris clamat and it was adjudged that he should Attorn for although Tenant in Tail after possibility of Issue extinct himself is not compellable to attorn yet his Assignee shall attorn for the privilege is knit to the person who is in truth Tenant in Tail after possibility of Issue which cannot be the Assignee for by the Assignment the privity and the privilege are destroyed 1 Len. 290.291 And where the Defendant in a Quid juris clamat is adjudged to attorn Distress infinite shall issue forth against him to compell him to attorn and if he when he appears doth refuse to attorn he shall be imprisoned until he doth attorn And this Iudgment That the Assignee of Tenant in Tail after possibility should attorn being given in a Court in Wales was afterwards affirmed in a Writ of Error brought upon it in the King 's Bench. LV. Lucas and Picrost 's Case 30 Eliz. In the Common Pleas. THE Case was 3 Len. 137. That an Assise of Novel disseisin was brought in the County of Northumberland of two Acres of Land and as to one Acre the Defendant pleaded a Plea tryable in a Foreign County upon which the Issue was adjourned into the Common Pleas and from thence into the Foreign County where by Nisi prius it was found for the Plaintiff And now Snag Serjeant prayed Iudgment for the Plaintiff and cited the Book of 16 H. 7. 12. where Assise is adjourned in Bank for difficulty of the Verdict they there may give Iudgment But the whole Court is of contrary Opinion for here is another Acre the Title of which is to be tryed before the Iustices of the Assise before the Tryal of which no Iudgment shall be given for the Acre for which the Title is found And the Assise is properly depending before the Iustices of the Assise before whom the Plaintiff may discontinue his Assise And it is not like unto the Case of 6 Ass 4. 8 Ass 15. where in an Assise a Release dated in a Foreign County is pleaded which was denyed for which cause the Assise was adjourned in Bank and there found by Inquest not the Deed of the Plaintiff now the Plaintiff if he will release his damages shall have Iudgment of the Freehold presently But in our Case Postea 199. 14 H. 7. part 118. parcel of the Lands put in view doth remain not tryed which the Plaintiff cannot release as he may the damages And therefore the Court awarded That the Verdict should be sent back to the Iustices of the Assise LVI Povye 's Case Mich. 30 Eliz. In communi Banco POvy an Attorny of the King's Bench brought an Action of Trespass there against the Warden of the Fleet who came into the Common Pleas and demanded the Advice of the Court because he is an Officer of this Court and therefore ought not to be impleaded elsewhere But it was said by the Court 3 Cro. 180. That because that the Plaintiff hath also his Privilege in the King's Bench as well as the Defendant hath here this equality of Privilege shall render the parties at liberty and he shall have the benefit of the Privilege who first begins Suit and so the Warden of the Fleet was advised to answer LVII Inchley and Robinson 's Case Hill. 29 Eliz. In the Common Pleas. IN an Ejectione Firmae it was found by special Verdict Owen Rep. 88. 3 Len. 165 That King E. 6. was seised of the Manor and hundred of Fremmington and by his Letters Patents granted the same to Barnard in Fee rendering 130 l. per annum and also to hold by Homage and Fealty and afterwards Queen Mary reciting the said Grant by E. 6. and the Reservation upon it granted to Gartrude Marchioness of Exeter the Manor of Fremmington and the said Rents and Services and also the Manor of Camfield and other Lands and tenements to be holden by the twentieth part of a Knight's Fee Gertrude so seised devised to the Lord Montjoy the Manor of Fremmington the Manor of Camfield c. and also bequeathed divers sums of money to be levied of the premisses and they farther found That the said Rent of 230 l. was the full third part of the yearly value of all the Lands and Tenements of the Devisor The Question was If by those words of the Devise Of the Manor of Fremmington the Rent and Services of the Manor did pass i. the Rent and the Homage and the Fealty reserved the Grant of King E. 6. of the Manor and Hundred of Fremmington and if the said Rent and Services are issuing out of the Manor for if the Rent doth not pass then the same is descended to the Heir of the Marchioness and then being found the full and third part of the value the King and the Heir is fully answered and satisfied and then the Inheritance of the residue discharged and settled in the Devisee And if the Rent doth not pass then is the Heir of the Marchioness entitled by the Statute to a third part of the whole Shuttleworth Serjeant If the Marquess had devised by express words the said Rent and Services they could not have passed for as to the Services they are entire things as Homage and Fealty and they cannot pass by Devise in case where Partition is to follow for such things cannot receive any Partition or Division therefore they are not divisible for the Statute doth enable the Proprietor or Owner to devise two parts of his Inheritances in three parts to be divided i. as Catalla Felonum cannot be devised for the reason aforesaid which was granted by the whole Court. And as to the Devise he argued much upon the grounds of Devises and put a ground put by Fineax 15 H. 7. 12. where every Will ought to be construed and taken according as the words do import or as it may be intended or implyed by the words what the meaning of the Testator was out of the words of the Will. See thereof a good Case 19 H. 8. 8. and 9. and he relied much upon the Case of Bret and Rigden Plow 342. So he said in this case because the intent of the Devisor doth not appear upon the words of the Will that this Rent should pass it shall not pass for there is not any mention made of any Rent in all the Will. Fenner contrary and he argued much upon the favorable construction which the Law gives to Wills 14 H. 3. Reversion for Remainder
è contr 17 E. 3. 8. A man may make a Feoffment of a Manor by the name of a Knights Fee à fortiori in case of the Devise and in our case the Marquiss conceived That the Rent and Services reserved out of the Manor of Fremmington was the Manor of Fremmington and the Law shall give strength to that intention Walmsly conceived That the Rent did not pass by the name of Manor c. for this Rent nec in rei veritate nor in reputation was ever taken for a Manor Also the words Of the Manor and Hundred of Fremmington are put amongst others which are Manors in truth by which it seemeth That the Devisor did not intend to pass but one Manor and no other Hereditaments by that Manor of Fremmington It is a Rule in Law That in the construction of a Will a thing implyed shall not controul a thing expressed But here if by implication the Rent shall pass then the Manor of Camfield shall not pass which it was the intent of the Devisor to pass and that by express words See 16 Elizab. Dyer 330. Clatche's Case and see 16 Eliz. Dyer 333. Chapman's Case But in our Case here there are not any sufficient words to warrant any implication for neither in truth nor in reputation was it taken to be a Manor 22 H. 6. 2. Green Acre might pass by the name of a Manor although it were but one Acre of Land because known by the name of a Manor See accordingly 22 H. 6. 39. And see where before the Statute of Vses a man had Recoverors to his use and he wills by his Will That his Trustees should sell his Lands they may sell And he said That if a man seised of a Manor parcell in Demesne and parcell in service and he grants the Demesnes to one and his Heirs and afterwards deviseth his Manor peradventure the services shall pass but this Rent hath no resemblance to a Manor Gawdy This Rent shall pass by the name aforesaid Favourable construction is to be always given to Wills according to the intent of the Devisor and no part of a Will shall be holden void if by any means it may take effect then here it appeareth that his meaning was that upon these words every thing should pass to the Devisee concerning the said Manor of Fremmington for otherwise the words of the Manor of Fremmington should be void and frivolous which shall not be in a Will if any reasonable construction can be for it is found expresly by the Iury That neither at the time of the Will made nor at the time of the death of the Devisor the said Devisor had any thing in the said Manor of Fremmington but onely the said Rent of one hundred and thirty pounds And it may well be taken that the Devisor being ignorant what thing a Manor is though that the Rent was a Manor because that he had Rents and services out of the Manor For in construction of Wills the words shall serve the intent of the party and therefore if a man deviseth That his Lands shall be sold for the payment of his debts his Executors shall sell them for the intent of the Testator naming the Vendors is sufficient And see Plowden 20 Eliz. 5. 24. L. after the Statute of 27 H. 8. deviseth that his Executors shall be seised to the use of A. and his Heirs in Fee whereas then there was no Feoffees to his use the same was holden a good Devise of the Lands of A. and the Iudges conceived that the Devisor was ignorant of the operation of the Statute in such case and therefore his ignorance was supplied See Br. Devises 44. 29 H. 8. A. had Feoffees to his use and afterwards after the Statute of 27 H. 8. willed that his Feoffees should make an Estate to B. and his Heirs it was holden by Baldwin Shelley and Mountague Iustices that it was a good Devise See 26 H. 6. Feoff 12. A Carve of Lands may pass by the name of a Manor Ergo à multo fortiori Rent for Rents and Services have more nearness and do more resemble a Manor than a Carve of Lands and it cannot be intended that the meaning of the Testator was to grant the Manor it self in which she had nothing especially by her Will for covin collusion or indirect dealing shall not be presumed in a Will Also the Marchioness for four years together before her death had the Rent and Services of the said Manor and she well knew that she had not any other thing in the said Manor but the said Rent and Services and therefore it shall be intended that that was her Manor of Fremmington A. seised of a Capital Messuage and great Demesnes lying to it leaseth the same for years rendring Rent and afterward deviseth to another all his Farm lying in such a place It was rated in that case that by that Devise the Rent and the Reversion should pass See the Case betwixt Worselie and Adams Plowd 1 Eliz. 195. by Anthony Brown and Dyer Periam Iustice was of opinion that this Rent might be divided well enough But by Anderson It is but Rent-seck but Periam said it was a Rent distrainable of common Right but all of them agreed that the Rent might be divided but there should not be two Tenures And the Lord Montjoy being advised that this Rent did not pass by the Grant but descended to the Heir being the full part of the whole entred into all the residue of the Lands and made a Lease of the Manor of Camfield unto the Plaintiff upon which entry the Ejectione firmae was brought and afterwards the Plaintiff seeing the opinion of the Court to be against him and for the Devisee of the Rent by the name aforesaid did afterward discontinue his suit c. LVIII Costard and Wingfield 's Case Trin. 30 Eliz. Intrat T. 28 Eliz. Rot. 507. In the Common-Pleas 6 Co. 60. IN a Replevin the Defendant did avow for damage-feasant by the commandment of his Master the L. Cromwel The Plaintiff by way of Replication did justifie the putting in of his cattel into the Land where c. by reason that the Town of N. is an ancient Town and that it had been used time out of mind c. That every Inhabitant of the said Town had had common for all manner of cattel levant and couchant within the said Town and so justified The Defendant said that the house in which the Plaintiff did inhabit in the said Town and by reason of residency in which House he claimed common was a new house erected within 30 years and that before that time there had not been any house there upon which the Plaintiff did demurr Shuttleworth Serjeant argued for the Plaintiff That he should have common there by reason of resiancy in the said new house and he said that the Resiancy is the cause and not the Land nor the person thereof and thereupon he put the Case of
15 E. 4. 29. And he agreed the Case That if the Lord doth improve part of the common that he shall not have common in the residue of the Land for the Lands improved because That he cannot prescribe for that which is improved as the Book is in 5 Ass But here in the principal Case he doth not prescribe in any person certain or in or for any new thing but he sets forth that the use of the Town hath always been that the inhabitants should have common there And this common is not common appendent or appertinent but common in gross See Needham 37 H. 6. 34. b. And he said That if the house of a Freeholder which hath used to have such common doth fall down and he erecteth a new house in another place of the Land that he shall have common to that new erected house as he had before And he took a difference betwixt the case of Estovers where a new Chimney is erected and this Case and he stood much upon the manner of the prescription Gawdy Serjeant contrary And he took exception to the prescription For he said that it is said therein That it is Antiqua Villa but he doth not say that it hath been so time out of mind c. and so it ought to be said as the Book is in 15 E. 4. 29. a. And then if it be not an ancient Town time out of mind the parties cannot prescribe as Inhabitants of the said Town to have common time out of mind c. And he said That if such a prescription as is said in this Case be good in Law viz. That every one who erected a new house within the said Town should have common to his said new house the same should be prejudicial to the ancient Town and to the utter overthrow and manifest impairing of the common there and it might so happen that one who had but little Lands in the said Town might erect twenty new houses there and so an infinite number of houses might be newly erected there and there should be common allowed to every Inhabitant within the said new erected houses which should be inconvenient and unreasonable Anderson chief Iustice He who erects a new house cannot prescribe in the common for then a prescription might begin at this day which cannot be and he insisted much upon the general loss which should happen to the ancient Tenants if such a prescription for new erections should be good Periam If it should be Law That he should have common in this Case That all the benefit which the Statute gives to the Lord for improvement should be taken away by such new edifications and erection of new houses which were not reasonable And such was the opinion of the other Iustices and therefore they all agreed that in the principal Case the Plaintiff should not have common to this new erected house but the entry of the Iudgment was respited untill the Court had seen the Record and after they had seen and considered upon the Record Anderson and Periam were of opinion as before But Windham did not encline to the contrary but they all agreed That he who set up again a new Chimney where an old one was before should have Estovers to the said new Chimney and so if he build a new house upon the foundation of an old house That he should have common to his said house new erected So if a house falleth down and the Tenant or Inhabitant sets up a new house in the same place Also if a man hath a Mill and a Water-course to it time out of mind which he hath used time out of mind to cleanse if the Mill falleth and he erecteth a new Mill there he shall have the Watercourse and liberty to cleanse it as it had before and afterwards the same Term Iudgment was given for the Defendant to which Windham Iustice agreed LIX Rous and Artois Case Hill. 29 Eliz. In the King's-Bench THE Case was large but the points in this Case were but two Owen Rep. 27. 4 Co. 24. The first was If Tenant per auter vye after the death of Cestuy que vye holdeth over If he be a Disseisor or not The second point was If Tenant at will or at sufferance be such a Tenant of the Manor as he may grant Copyhold Estates to Copyholders For the first point It was agreed by Godfrey and he held that the principal Case was That if Tenant pur auter vye holdeth over the life of Cestuy que vye that he thereby gaineth the Fee But he granted the Cases That where a man holdeth at the will of another that after the Estate determined if he holdeth over he hath not thereby gained fee for he is Tenant at sufferance and as Littleton saith in his Chapter of Releases 108. Tenant at sufferance is where a man of his own head occupieth the Lands and Tenements at the will of him who hath the Freehold and such an occupier claims nothing but at will But he said That in the principal Case he otherwise claimed than at the will of the Lessor for that it appeareth that he hath granted Copy and he said that this difference doth give answer to the Case which is t. H. 8. br t. per Copy 18. where it is said for Law That none is Tenant at sufferance but he who first enters by authority of Law As if a man makes a Lease for years or for the life of another and he holdeth the Lands after his term expired or after the death of Cestuy que vye If he claim nothing but at the will of him who hath the Freehold he is a Tenant at sufferance But if he holdeth in the Lands against the will of his Lessor then he is a Disseisor and so if he do act after such continuance of possession contrary to the will of his Lessor he is a Disseisor 10 E. 4. If an Infant maketh a Lease at will and the Lessor dieth and the Lessee continueth in possession and claims Fee the Heir shall have Mortdancester 18 E. 4. If Cestuy que vye dieth and the Tenant hold in and was impleaded The Lessor shall not be received and he conceived the reason of the Case to be because that the reversion was not in him but that the Fee was gained and rested in the other 22 E. 4. 39. g. by Hussey If a Termor holdeth over his term there an Estate in Fee is confessed to be in him because he holdeth the possession of the Lands by wrong but there is a Quaere made of it if he be a Disseisor or not but I conceive that he is for Trespass doth not lie against him before the Lessor hath made his entry and therefore if the Lessee doth continue in the possession of the Lands by reason of the first entry that is the reason as I conceive that the Writ of Entre ad terminum qui praeteriit lieth against such a Termor who holds so over his Term and
that Writ is a Praecipe quod reddat which doth not lie but against a Tenant of the Freehold And such is the opinion of Tilney 7 H. 4. 43. That if the Guardian holds in the Lands at the full age of the Heir or if the Tenant for years after the term expired holdeth over the Lands their Estates shall be adjudged a Fee. And in our Case here he doth not claim to hold in at the will of the Lessor for he hath done an act contrary to the will of the Lessor For he being Lord of the Manor in manner as aforesaid 3 Cro. 302. hath granted Estates by Copy and it is holden 12 E. 4. 12. by all the Iustices That if Tenant at will or Tenant at sufferance at will makes a Lease for years that the same is a Disseisin to the Lessor and the Tenant at will thereby gains the Freehold and the reason of the Book seems to be because he claims to hold a greater Estate than of right belongs unto him The second point was If Tenant at sufferance might grant Copies and he said that he might and such grant should be good because he is in by lawfull means and an Assise doth not lie against him as in the Book of 22 E. 4. 38. before and he is Dominus pro tempore And this Case is not like to the Cases where Copies are made by Abators or Disseisors for the Law doth adjudge that Copies made or granted by them are void and his act here as a Tenant at sufferance of making and granting of the Copies stands with the custome of the Manor which warrants them as in the Case of Grisbrook and Fox if an Administrator made by the Ordinary sells the goods of the Intestate and with the money thereof arising payeth the debts of the Intestate and afterwards he who was made Executor proves the Will he shall not avoid such sale of the goods because he hath made it according to Law and hath done no more than an Executor is compelled to doe So 12 H. 7. 25. b. If a Baily cut down trees to repair an ancient pail the same is good So 4 H. 7. 14. b. If he payeth a Quit Rent it is good And note 4 Mariae Br. Tenant by Copy 27. That the Lessee of a Manor in which there are Copyholds after the death of the Copyholder may admit the Heir of the Copyholder to the Land and so he may doe who hath but an Estate in the Manor durante bene placito and yet it seems by the Book that such a Tenant of the Manor cannot reserve and lessen Rent but he ought to reserve the ancient Rent or more Coke contrary And first he said that he who holdeth over the life of the Cestuy que use doth not gain any Fee where he comes in first by right for that he is but Tenant at sufferance 35 H. 8. Dyer 57. in the Case of the Lord Zouch Cestuy que use for life the remainder over in tail makes Lease for life of the Lessee he dieth the Lessee continueth his Estate and the opinion of the Iustices of the Common-Pleas and of others was that he is but a Tenant at sufferance for the Lease was not any discontinuance of the Remainder because he had authority by the Statute of Rich. 3. to make a Lease and that is intended of such Estate which he might lawfully doe and this is our Case and so it is adjudged already As to the second point I grant that Tenant for years or at will or at sufferance is Dominus pro tempore but there is a difference as unto granting of Copies by them For it was adjudged 25 Eliz. that they might grant Copies which are to be granted upon surrenders made by Copyholders As if a Copyholder doth surrender to the use of another they may accept of such a surrender and grant the Lands by Copy to him to whose use the surrender is made But if a Copyholder dieth they cannot grant voluntary Copies de novo And he said that Popham who argued the said Case in 25 Eliz. That this difference was agreed and so adjudged in one Sleer's Case And so 17 El. in the Case of one Stowley where the Case was That a Manor was devised to one and the Devisee entred and granted Copies and afterwards it was found that the Devise was void and it was there holden that Copies made by such Devisee upon surrenders were good and were not to be avoided but contrary of Copies made after the death of Tenants upon voluntary grants I grant that when Cestuy que use dieth the Estate for life is utterly void and gone and therefore he is in by wrong but he cannot thereby gain so great an Estate as a Disseisor because he came in at the first by right Atkinson put a difference betwixt Tenant at will and Tenant at sufferance for Tenant at will shall have aid but contrary of Tenant at sufferance as the Book is 11 H. 4. a Release to Tenant at will is good contrary to Tenant at sufferance when after the death of Cestuy que use he holdeth over he hath some interest scil to this purpose that he shall not be a wrong doer for he is neither Abator nor Desseisor therefore not a wrong doer and then if he be in by a right or rightfully he is then Dominus pro tempore and then the grants made by him by Copy are good 7 H. 7. 3. Tenant at sufferance was to justifie the distraining the cattel of another damage feasant Coke True it is the beasts of a stranger but not of the Tenant of the freehold Gawdy Iustice The Lessor cannot have Trespass against him before entry not because he is not a wrong doer but because it is his folly that he doth not enter All the Iustices did hold with the Plaintiff against the Copy granted and that he which granted it was but Tenant at sufferance and not a Desseisor nor had gained the Fee because he came in first by right And therefore they awarded that if the Defendant did not shew better cause that Iudgment should be entred for the Plaintiff LX. Trin. 29 Eliz. In the Exchequer IN the Exchequer Chamber there was this Case An Indenture Tripartite was betwixt three A. was one of them and he covenanted with them Et quolibet eorum And the Covenant was that the Land which he had aliened to one of them was discharged of all incumbrances and he to whom the limitation of the Lands was but a Writ of Covenant sole Buckley argued that it was well brought and cited the Case of 6 E. 2. Br. Covenant 49. where one covenanted with twenty to repair the Sea-banks and he did not repair against two of them and they two brought a Writ of Covenant solement and the Writ holden maintainable because they onely were damnified and so he said in this Case But notwithstanding this it was afterwards 5 Co. 18. viz. M. 30 Eliz.
14. but contrary in a Writ of Habere facias seisinam or in a Liberate for in these Writs there are not such words and therefore although they be not retorned Execution done by virtue of them is good enough See 11 H. 4. 212. If the Sheriff by force of an Elegit doth deliver the moyety of the Land and doth not retorn the Writ if the Plaintiff will plead a new Action of Debt the Defendant may plead in Bar the Execution aforesaid although the Writ be not retorned nor doth remain upon Record and it is not like unto the Case of Partition made by the Sheriff for that must be retorned because that after the Retorn of it a secondary Iudgment is to be given scil Quod Partitio praedict firma stabilis remaneat in perpetuum firma stabilis in perpetuum tenetur says the Book of Entries 114. And Egerton the Solicitor-General cited a Case to be lately adjudged betwixt the Earl of Leicester and the Lady Tanfield Earl of Leicester and Tanfields case That such an Execution was well enough although the Liberate was not retorned The second point was Admitting that it be a good Execution If the Executors being in possession of the Manor and suffering the Conusor to hold a Court there and saying the words aforesaid in the presence of the Lord who is Conusor if the same do amount unto a Surrender or not And it was the Opinion of Wray chief Iustice That it was not a Surrender for that here the words are not addressed to the Conusor who was capable of a Surrender but to other persons And it is not like unto the Case of 40 E. 3. 23 24. Chamberlains Assise where Tenant for life saith to him in the Reversion That his Will is that he enter upon the Land the same is a good Surrender because here is a person certain who may take the Land But in our case it is but a general speech and therefore it shall not be a Surrender LXVI Baskervile and Bishop of Hereford 's Case Mich. 29 Eliz. In the Common Pleas. IN a Quare Impedit brought by Walter Baskervile against the Bishop of Hereford and others the Plaintiff counted That Sir Nicholas Arnold Knight was seised of the Advowson in gross and granted the same to the said Baskervile and others to the use of himself for life and afterwards to the use of Richard Arnold his Son in tail Proviso That if the said Nicholas died his Heir being within the age of twenty three years that then the Grantees and their Heirs should be seised to themselves and their Heirs until the said Richard had accomplished the said age Sir Nicholas died Richard being but of the age of fourteen years by force whereof the Grantees were possessed of the said Advowson c. and afterwards the Church became void and so it appertained to them to present Exception was taken to the Count by Serjeant Gawdy because the Plaintiff had not averred the life of Richard upon whose life the interest of the Plaintiff did depend and he compared the same to the Case of the Parson which had been adjudged where the Lessee of a Parson brought an Ejectione Firmae and it was found for him and in Arrest of Iudgment Exception was taken to the Declaration because the life of the Parson was not averred and for that cause the Iudgment was stayed Anderson Vpon the dying of Sir Nicholas Richard being but of the age of fourteen years an absolute Interest for nine years vested in the Grantees not determinable upon the death of Richard or rather they are seised of a Fee determinable upon the coming of Richard to the age of 23 years Rhodes and Windham Iustices contrary and that here is an Interest in the Grantees determinable upon the death of Richard within the term for if Richard dieth without issue within the term the Remainder is limited over to a stranger And as to the Exception to the Count it was argued by Puckering Serjeant That the Count was good enough for although the life of Richard be not expresly added yet such an averment is strongly implied and so supplyed For the Count is Quod dictus Nich. obiit dicto Richardo being of the age of fourteen years non amplius by force of which the Plaintiff was possessed of the said Advowson quo quidem Nich. sic possessionato existente the Church voided and possessed he could not be if not that the said Richard had then been alive and that is as strong as an Averment See 10 E. 4. 18. In Trespass for breaking of his Close the Defendant pleaded That A. was seised and did enfeoff him to which the Plaintiff said That long time before A. had any thing B. was seised and leased to the said A. at will who enfeoffed the Defendant upon whom B. re-entred and leased to the Plaintiff at will by force whereof he was possessed untill the Defendant did the Trespass and that was allowed to be a good Replication without averring the life of B. who leased to the Plaintiff at will for that is supplied by the words scil virtute cujus the Plaintiff was possessed untill the Defendant did the Trespass See also 10 H. 7. 12. In an Assise of Common The Defendant made Title that he was seised of a House and a Carve of Land to which he and all those whose Estate he hath c. had common appendant and doth not say That he is now seised of the House but the exception was disallowed for seisin shall be intended to continue untill the contrary be shewed LXVII Morgan and Chandler 's Case Trin. 29 Eliz. In the King's-Bench IN Debt for Arrerages of Rent by Morgan against Chandler It was found by special Verdict That the Land out of which c. was assured by an Act of Parliament to the Marchioness of Northampton for the term of her life the remainder to the Lady Bourcher her daughter and the heirs males of her body the remainder to King H. 8. in Fee And it was ordained by the same Act Quod omnes concessiones dimissiones Anglice Grants and Leases factae vel in posterum fiendae by the said Marchioness of the Lands aforesaid per script Indentat dict Marchio bonae validae in Lege erunt durante termino c. The Marchioness made a Lease for 21 years to Kenelm Throgmorton rendring 10 l. Rent who assigned the same to the Defendant The Lady Bourcher died without Issue the Marchioness died and if the Lease should now bind the Queen was the Question And it was moved by Clark of Lincoln's-Inn That it should for the King was party to the Act of Parliament and those Estates for life in Tail and in Fee are all as one Estate and derived out of one Estate and the Estate of the King is bound with the Lease and it was moved by Broughton That the Lease should not bind the Queen and so by consequence not her Patentee and he
all this was before the Statute of 14 Eliz. And if the said Recovery should bind B. who was in the remainder in tail or if it be a forfeiture was the Question Altham of Gray's-Inn argued that here is a forfeiture First it is to see if a common Recovery suffered hy Tenant for life who is also Bargainor in this case be a forfeiture or not by the Common Law if no Execution be sued upon the same Recovery Secondly If the Recovery be executed if he in the Remainder may enter for the forfeiture When Tenant for life bargaineth and selleth the Messuage Post 65. acc 1 Len. 264. 1 Inst 251. b. acc 1 Inst 330. b. c. although upon it an Estate in Fee be limited yet nothing passeth from him but that which he may lawfully pass and that was the Estate for the life of the Bargainor for such Estate onely might lawfully pass and here the Bargainee is but Tenant for the life of another and when with his own consent he suffers a common Recovery and that without right the same is a forfeiture By matter in fact a particular Tenant may commit a forfeiture as well as by matter of Record By matter in fact he cannot commit a forfeiture if the Reversion be not thereby pulled out of him in the reversion As if Lessee for ten years maketh a Lease for 1000 years the same is no forfeiture for by that the Reversion is not touched but if he in matter of Record doe any thing which sounds to the disinheriting of him in the Reversion although in truth it doth not touch the inheritance yet it is a forfeiture which see 39 E. 3. 16. If Tenant for life plead any thing against the right of him in the Reversion it is a forfeiture And by Finchden and Belknap he cannot plead to the right 5 Ass 3. Tenant for life is impleaded in a Praecipe by a stranger and confesseth the Action upon which the Demandant hath Iudgment the Lessor enters against whom the Demandant sueth Execution and the Lessor brought an issue and had Iudgment to recover for it is a forfeiture because the Tenant for life hath admitted the Reversion in another because it is an alienation to the disinheritance of the Plaintiff i. the Lessor 19 E. 3. t. Receit 14. where Tenant for life pleads in chief or doth not gainsay the Action of the Demandant or makes default by Covin he shall forfeit his Estate but if a Rent be demanded against Tenant for life and he render the same it is no forfeiture 22 Ass 31. Tenant for life is impleaded by Covin betwixt him and the Demandant and pleads in chief without aid prayer upon which Iudgment is given he in the Reversion may enter In a Quid juris clamat against Tenant for life who pleaded faulty traversing the point of the Action he in the Reversion shall not be received for in as much as the Tenant hath traversed the Action he is not within the Statute of West 2. of default Reddition but he in the Reversion may enter by the Common Law 22 E. 3. 2. In a Scire facias to execute a Fine against Tenant for life who pleaded to the Enquest whereas in truth the Land in demand was not comprised within the Fine and Iudgment is given for the Demandant in the Scire facias that he in the Reversion may enter In the principal Case here there is apparent and manifest covin for the Tenant for life is vouched without cause and this Recovery is by assent and is to the use of the Bargainee who is Tenant for the life of another and therefore by the Common Law he in the Reversion may enter before the Execution be sued And it is well known that these common Recoveries are used to dock a Remainder in tail and that was the scope of this Recovery And as to the Case of 5 E. 4. 2. Tenant for life is impleaded in a Praecipe quod reddat who voucheth a stranger the Demandant counterpleads the vouchee and it is found for him he in the Reversion hath no remedy but a Writ of Right and if such vouchee enters into the Warranty and loseth by Action tried or by default c. That Book is to be intended of a Recovery executed for there in such a case he in the Reversion may not enter but is put to his Writ of Entry by the Common Law vide Br. Tit. Forfeit 87. 24 H. 8. Tenant for life is impleaded and prayes in aid of a stranger he in the reversion may enter but if he doth not enter untill the other hath recovered then he cannot enter but he is put to his Writ of Entry Ad terminum qui praeteriit vel de ingress ad com Legem and therein shall falsifie the Recovery And there by Brook Voucher of a stranger is not a cause of forfeiture for he doth not disaffirm the Reversion to be in the Lessor And he vouched 24 E. 3. 68. where Tenant for life pleaded in the Right without aid prayer and so he argued That before execution he in the Remainder might enter but after execution he is put to his Action but in our Case although Execution be sued yet he in the Remainder may enter for it is found by verdict That at the time of the Recovery he was within age and then no Laches of entry shall be imputed unto him and then he shall not be driven to his Action As if Tenant by the Curtesie maketh a Feoffment with Warranty and dieth and the same descendeth to his Heir within age yet he shall enter although that he had not avoided the Warranty in the life of his Ancestor And he also conceived that the Statute of 32 H. 8. cap. 31. did extend to this Case For Sir William Pelham the Bargainee was but Tenant for life and although that he be but Tenant for the life of another yet he is Tenant for life as fully as if he were Tenant for his own life The words of the Statute are or otherwise for the term of life or lives quo ad nom As upon the Statute of 20 E. 1. which gives receit i. de defensione juris the words are Cum quis aliquod Breve Dom. Regis impetret versus tenentem per Legem Angliae vel feodum talliatum vel sub nomine Dotis vel alio modo ad terminum vitae c. Also although that he who entreth at the time of the recovery was not next in the Remainder to the particular Estate yet he is within the Statute of 32 H. 8. for he was in the Remainder at the time of the Recovery and at the time of the entry he in the immediate Remainder was dead and then he next in Remainder See 15 E. 4. 9. by Littleton If I grant my services to one for life and he in a Praecipe brought against him plead in the Right or granteth unto another the said services in Fee the same is not any
forfeiture because it is not any discontinuance It will be objected That the words of the Statute of 32 H. 8. are That such Recoveries shall be utterly void and if so then he in the Reversion cannot be damnified and then no cause of forfeiture To that it was easily to be answered That where Tenant for life doth any thing which sounds to the disinheriting of him in the Reversion by matter of Record although it doth not devest or otherwise prejudice the Inheritance yet it is a forfeiture Coke contrary Here in our Case there is not any Covin Sir William Pelham the Bargainee he was deceived by the Bargainor for he did not know but that the Bargainor was seised in tail at the time of the Bargain and it was lawfull for him to doe other act in the farther assurance of his bargain and it was also lawfull for him to vouch his Bargainor and although the Bargainor vouched a stranger yet it is not a forfeiture 39 E. 3. 16. Aid prayer of a stranger is a forfeiture and the reason thereof is because he acknowledgeth the Reversion to be in a stranger and that is the cause of the forfeiture See Book of Entries 254. Where upon aid prayer the party to have aid sheweth special matter but in our Case Sir William Pelham hath vouched his Bargainor and that not without cause for he hath a Warranty from him and the Demandant could not counterplead it for he had seisin by force whereof he might make a Feoffment As unto the Case of 14 E. 3. Tit. Receit 135. Lesse for life in a Praecipe against him without aid prayer pleaded to the Enquest at the first day in that case it is said that he in the Reversion may enter It is true that he may enter in the Receit but not into the Land for forfeiture for then Fitz. would have abridged the Case in title of Entry Congeable and not in the Title of Receit and the Book of 5 E. 3. is good Law for there the Tenant doth confess the Reversion to be in another but in our Case the Tenant voucheth which is a lawfull act done and according to the Covenants of his purchase And although the Recovery be by agreement yet it is not therefore a forfeiture for if the Tenant for life voucheth truly it is no forfeiture Before the Statute of West 2. cap. 3. which gave Receit to the Wife and to those in the Reversion where the particular Tenant is impleaded and maketh default vel reddere noluerit there was no remedy in such cases but by Writ of Right but no entry and that was for the reason of the credit which the Law gave to Recoveries for if they might enter wherefore is Receit given but that was in two cases onely But afterwards because it was found that many particular Tenants being impleaded would plead faintly the Statute of 13 R. 2. gave receit in such cases And upon what reasons were these Acts and Statutes made if in such cases the entry was congeable But after these two Statutes another practice was devised for such particular Tenants would suffer Recoveries secretly in such sort that those in the Reversion could not have notice thereof so as they could not before Iudgement pray to be received to remedy which mischief the Statute of 32 H. 8. was made by which all Recoveries had against Tenant by the Curtesie or otherwise for life or lives by agreement of the parties of any Lands whereof such particular Tenant is seised shall be void as Tenant by the Curtesie c. should be void against him in the Reversion and yet there was an evasion to creep out of that Statute for such particular Tenants would make a Feoffment with Warranty and then the Feoffee should be impleaded in a Writ of Entry and he vouch the Tenant for life who would aver and such Recovery was holden to be out of the Statute of 32 H. 8. For the Recovery was not against such particular Tenants c. For the remedy of which mischief the Statute of 14 Eliz. was made by which it is provided That such Recoveries had where such particular Tenants are vouched shall be void if such Recovery be by Covin betwixt them And he conceived That the forfeiture is not in respect of the Recovery it self but of the Plea pleaded by the Tenant And here in our Case there is not any Covin found or that Sir William Pelham knew that he was but Tenant for life but it is found that this Recovery was with their assent and that was lawfull as the case is for they might agree to have such a Recovery for farther assurance and so Sir William Pelham hath not vouched any but his Bargainor and that according to their Covenants and this Bargainor was not a bare Tenant for life but he had also a Remainder in tail although not immediately depending upon the Estate for life which he had cut off there it was not meerly a feigned Recovery See 5 E. 4. 2. and 24 H. 8. br Forfeit 87. where Tenant for life being impleaded in a Praecipe voucheth a stranger the same is no Forfeiture for the same doth not disaffirm the Reversion but contrary of Aid prayer for a stranger may release with warranty to Tenant for life upon which he may vouch And he reported in his Argument That Bromley Chancellor of England sent him to both the chief Iustices to know their Opinions upon this point and they were of Opinion That the Voucher of a stranger was not any Forfeiture and also that after the Recovery was executed he in the Remainder could not enter but they conceided that the Right of him in the Remainder was not bound And he said That after the Recovery was executed that he in the remainder could not enter See 24 H. 8. Br. Forfeit 87. For if Entry in such Cases should be lawfull infinite Suits would follow thereupon which would be much to the Discredit of common Recoveries which are now the Common Assurances of the Land. As to the objection of the Enfancy the same will not help the matter Br. Sav. Default 50. 6 H. 8. A Recovery had against an Infant in which he voucheth and loseth is not erroneous contrary of a Recovery upon a default And if an Infant Tenant in tail suffer a common Recovery the same is a discontinuance for in such Recoveries Infancy is not respected And in a Scire facias upon a Iudgment had against the Father the Heir shall not have his age And he cited a case out of Bendloe's Reports 5 Eliz. Tenant for life the Remainder over to a stranger in Fee Tenant for life is disseised by Covin in a Praecipe quod reddat against the Disseisor he voucheth the Tenant for life who enters into warranty generally and voucheth over the common Vouchee It was adjudged That the Recovery was out of the Statute of 32 H. 8. for the Recovery was not had against the particular Tenant for he
was but Tenant in Law because Vouchee and also that the Recovery was a good bar to him in the remainder notwithstanding that he was within age at the time of the Recovery And afterwards at another day the Case was argued by the Barons and Clark Baron conceived That the Entry of him in the remainder was congeable It hath been said That Sir William Pelham did not know that the Bargainor had an Estate but for his life or that any other person had any remainder therein the same is not to any purpose to excuse him for 42 E. 3. Every Purchasor ought at his own peril take notice of the Estates and charges which are upon the Lands of which he is Purchasor and the Law presumes that none will purchase Lands without advice of Councel and without knowing the Titles to the Lands And although divers Statutes have been made to provide against the practices of particular Tenants yet it is no argument that no other remedy was before And by Littleton If Tenant for life joyneth the Mise upon the mere right it is a forfeiture And he held strongly That the Iudgment did not take away the Entry cause of forfeiture being given before the Iudgment See 5 Ass 3. and 22 Ass 31. to that purpose For where Tenant for life is impleaded he ought to attend upon him in the reversion and to expect instructions from him in defence of his Title c. And therefore if he maketh default or confesseth Action the same is a forfeiture And as to the supposed recompence the same shall not help this Case for this is a common recovery and nothing else but an Assurance And Recoverors they are but Assignees and they shall take advantage of Conditions by 32 H. 8. and a Recoveror shall be seised to the use of him who suffereth the Recovery if no other use be expressed And he also held That when Tenant for life bargains and sells his Lands by Deed enrolled although no Fee passeth yet it is a forfeiture and that by reason of the Enrolment which is matter of Record And he said that if an Infant Tenant for life be disseised and the Disseisor dieth and afterwards the Infant dieth that he in the Remainder might enter Gent Baron argued to the same intent and he said That if Tenant for life suffereth a Recovery the same is not simply a forfeiture for he may have a warranty upon a Release or Confirmation made to him Attornment doth not give a Right but is onely a Consent yet if he who hath not any thing in the Reversion will levy a Fine thereof unto another and afterwards the Conusee brings a Quod juris clamat against the Tenant of the Land and he attorn it is a Forfeiture Manwood Baron to the same intent this is a new Case and I have not seen nor read the Case in any Book nor seen any presidents and it is a great case and a general case and worthy to be argued And I conceive clearly That here is a direct and express forfeiture the Dignity of Iudgments in reputation of Law hath been urged which ought to stand in force until they be reversed by Error or Attaint And also Littleton 481. hath been urged where upon the Statute of West 3. he saith That before the Statute aforesaid if a Lease had been made to one for life the remainder to a stranger and afterwards a stranger by faint Action hath recovered against Tenant for life by default and afterwards the Tenant for life died he in the Remainder had not any remedy But there Littleton doth not report the same as his own Opinion but as an Opinion conceived by a Reader upon the said Statute and in truth it is but a meer conceit And as to the main point he took this difference Such Recoveries in which the title of the Demandant stands indifferent to the Court and non constat if it be good or not being suffered by Tenant for life by default or confession without aid-prayer of him in the Reversion do not make any forfeiture although that the Tenant for life hath not dealt with him in the Reversion not having prayed in aid of him And in such case if a Lease be made for life the Remainder over in Fee upon such Recovery he in the remainder shall have a Formedon in the remainder or a Writ of Right and shall not put out him who recovered without any Action and that by the common Law. Then came the Statute of West 2. c. 3. which gave unto the Wife a Gui in vita upon a Recovery had against the Husband by default where before she had not any remedy but onely Writ of Right and notwithstanding si ulterius quaeratur si necesse habet ostendere jus suum secundum formam brevis quod prius impetraverat And if his Right be not better than the right of him in the Reversion he shall lose it notwithstanding the Iudgment given before for him and that Statute gave Receipt or Writ of Entry ad terminum qui praeteriit and that Statute is to be intended of such Recoveries where a good Title or indifferent is so as non Constat Curiae if it be good or not After that Tenant for life was driven unto a new shift and would not make default or lose for not pleading but he would plead but that faintly for the remedy of which mischief the Statute of 13 R. 2. which gave Receipt in such case the particular Tenant being restrained by this Statute he jugled yet and practised to suffer a Recovery secretly without notice of him in the Reversion for the remedying of which mischief the Statute of 32 H. 8. was made and that makes such Recovery had against such a particular Tenant void against him the Reversion It hath been objected That the said Statute of 32 H. 8. did not give any forfeiture in this case but makes the Recovery void and therefore he in the Reversion ought to stay until after the death of the particular Tenant To that I shall speak after But here our case is of a common Recovery and it doth appear to the Court that the Demandant hath not right for the Tenant might have barred him Also this Recovery is not to the use of the Recoveror but to the use of him who was Tenant in it and in truth it is nothing else but an assurance and in these feigned Recoveries the Recoveror comes in under the Title of the Tenant to it and not paramount as in case of a Recovery upon a good Title A Lease for years made by him who after suffers a Recovery is good and shall not be defeated by the Recovery otherwise it is where the Recovery is upon a good Title See Statute of Glocest cap. 11. where upon default of the Tenant Receipt is given for Lessee for years yet if the Tenant vouch upon default of the Vouchee the Lessee for years shall be received and now Receipt of Lessee for
Son living his Father cannot take as heir i. by limitation as Heir to his Father because that none can be said or held Heir to his Father as long as the Father be alive yet by way of Devise the Law shall favour the intention of the party and the intent of the Devisor shall prevail But all the Court was strongly against it and held that as well in Case of Devise as of Grant all is one Whereupon the Tenant produced Witnesses who affirmed upon their Oaths That the Devisor declared his meaning concerning the said Will That as long as his eldest Son had issue of his body that the Daughters should not have the Land but the Court utterly rejected the matter and Iudgment was given for the Plaintiff XCV the Countess of Linnox Case 29 Eliz. In the Exchequer IN this Case it was said by Manwood chief Baron That whereas the Cistercians c. had a Privilege that they should not pay Tithes for their Lands quas propriis manibus excolant but their Fermors should pay Tithes and now by the Statute of 31 H. 8. they are dissolved That the Queen and her Fermors should be discharged of such Tithes as the spiritual persons were for the Queen cannot excolere ergo her Fermors shall be discharged and so long as the Queen hath the Freehold her Fermors shall have such Privilege although she Leaseth for years or at Will But if the Queen granteth over the Reversion then the Fermors shall pay Tithes More Rep. 915. XCVI Golding 's Case Mich. 29 Eliz. In the King's-Bench IN an Action upon the Case against Gloding the Case was 1 Len. 296. 1 Cro. 50. Noy 18. A Feme sole being Tenant for life by Devise of Lands Leased the same for years to begin after her death and afterwards made another Lease 18 Octob. for twenty one years to the same Lessee to begin at Michaelmas before and the Pleading was Virtute cujus quidem dimissionis and the Lessee entred Crast Sanct. Mich. which was before the making of the Lease And upon the Grant of these two Leases the consideration of Assumpsit was grounded in an Action of the Case thereupon and six hundred pounds damages given And now this was moved in Arrest of Iudgment Coke for the Plaintiff Where two Considerations are laid down in the Declaration although that the one be void yet if the other be sufficient the Action upon the Assumpsit lieth and damages shall be taken accordingly And the Grant upon the Assumpsit was That both the Leases should be assigned to the Defendant and the Plaintiff hath declared accordingly although that one of the Leases be void And the Agreement was That the Plaintiff should assign totum statum titulum interesse suum quae habet in c. It appears here in the Pleading That the Lease was made the eighteenth of October and the Lessee did enter and was thereof possessed Crast Mich. which was before and so the Lessee then entering was a Disseisor But by Coke the same is not a Disseisin although that the Lessee entreth before the Lease made for there was a communication of a Lease although the Lease was not made before the eighteenth of October and peradventure it was by assent of the Lessor in which case it cannot be a Disseisin but be it a Disseisin yet in as much as he hath assigned all his interest quod ipse tunc habuit the Consideration is answered and he hath also delivered both the Indentures of Demise and hath granted all that which he might grant be such Grant void or good it is good Consideration enough as to us Egerton Solicitor contrary In every Action upon the Case upon a Promise there are three things considerable Consideration Promise and Breach of Promise As to the Consideration in our Case the Grant of the Lease which is to begin after the death of the Lessor is merely void And as to the second Consideration it appeareth That the Lessor at the time of the making of the Lease had but a Right for he was disseised for he who was afterwards the Lessee entred before he had any Lease made unto him and so here is not any consideration to ground the Assumpsit upon But admit that there be a consideration yet the Action doth not lie For 19 Eliz. a difference was taken by the Iustices scil When in the Declaration in an Action upon the Case two or more considerations are laid and are not collateral but pursuant As if I owe you an hundred pounds and I say That in consideration that I owe you 100 l. and in consideration that you shall give me 10 l. I promise to pay unto you the said hundred pounds which I owe you If you bring an Action upon the Case against me for the hundred pounds and lay in your Declaration both considerations although you do not pay me the ten pounds yet the Action lieth But where the considerations are not pursuant but meerly collateral and do not depend the one upon the other As in consideration that you are of my Councel and you shall ride with me to York I promise to give to you an hundred pounds there both considerations ought to be performed or otherwise the Action doth not lie and so here in the principal Case the considerations being collateral they both ought to be performed Afterwards upon consideration had of the Case by the Court Iudgment was given for the Plaintiff and it was said by Coke That there was not any Disseisin in the Case but he who entred was Tenant at sufferance by reason of the precedent communication XCVII Curtise and Cottel 's Case Trin. 28 Eliz. In the King's-Bench THE Case was this That one Bonham was seised of a Manor within which there were divers Customary Lands demisable by Copy for three lives The Lord of the Manor did demise some of those Lands to three Sisters Habendum to them for their lives successive for the Fine of 100 l. by them paid and they being seised accordingly the eldest Sister who was Tenant in possession took to Husband one Chapman after which the said Lord by Indenture leased the same Land to the eldest Sister the Remainder to the Husband the Remainder to the second Sister and no Agreement was made thereunto by the second Sister by Deed before or after the making of the Indenture but four days after the Lease made she agreed to it in the Country and then took to Husband Curtise and they entred claiming the said Land upon which Entry the Action was brought The point was That when the Lease by Indenture was made to the eldest Sister at which time no agreement was made by the second Sister who was in Remainder yet when after she agreed If by that Agreement her Right to the Copihold were extinct or not so as the interest of the eldest Sister being gone by the acceptance of the Estate by the Indenture the second Sister might come and claim
Law doth admit the oath of the party in his own cause as in Debt the Defendant shall wage his Law Periam That 's an ancient Law but we will not make new Presidents for if such oath be accepted in this Case by the same reason in all cases where is secrecy and no external proof upon which would follow great inconveniencies and although such an Oath hath been before accepted of and allowed here yet the same doth not move us and we see no reason to multiply such Presidents The Declaration is that the Plaintiff was robbed of 10 l. de denariis ipsius querentis and upon the Evidence it appeareth That the Plaintiff was the Receiver of the Lady Rich and had received the said money for the use of the said Lady and exception was taken to it by Shuttleworth but it was not allowed for the Plaintiff is accomptable to the Lady Rich the said money And it was agreed that if he who was robbed after he hath made Hue and Cry doth not farther follow the thieves yet his Action doth remain CX Large 's Case Mich. 29 Eliz. In the King's-Bench 3 Len. 182. THE Case was A. seised of Lands in Fee devised the Lands to his wife until William his son should come to the age of 22 years and then the Remainder of part of the Lands to his two sons A. and John The Remainder of other part of his Lands to two others of his said sons upon condition That if any of his said sons before William should come to the age of 22 years shall go about to make any sale of any part c. he shall for ever lose the Lands and the same shall remain over c. And before his said son William came to the age of 22 years one of the other sons Leased that which to him belonged for 60 years and so from 60 years to 60 years until 240 years ended c. Bois A. and J. are joynt-tenants of the Remainder and he said That the opinion of Audley Lord Chancellor of England is not Law scil where a man deviseth Lands to two and to their heirs they are not joynt-joynt-tenants as to the survivor but if one of them dieth the survivor shall not have the whole but the heir of his that dieth shall have the moyety See 30 H. 8. Br. Devise 29. And he said That this Lease although it be for so many years is not a sale intended within the Will and so is not a Ioynture 46 E. 3. One was bounden that he should not alien certain Lands and the Obligor did thereof enfeoff his son and heir apparent the same was held to be no alienation within the Condition of the Obligation Of the other side it was argued The remainder doth not vest presently for it is incertain if it shall vest at all for if William dieth before he cometh to the age of 22 years it was conceived by him that the Remainder shall never vest for the words of the Will are Then the Lands shall remain c. 34 E. 3. Formedon 36. Land is devised to A. for life and if he be disturbed by the heir of the Devisor that then the Land shall remain to D. Here D. hath not any remainder before that A. be disturbed It was farther argued that here is a good Condition and that the Devisee is not utterly restrained from sale but onely untill a certain time scil to the age of William of 22 years And it was said that this Lease is a Covenous Lease being made for 240 years without any Rent reserved As such a Lease made for 100 years or 200 years is Mortmain as well as if it had been an express Feoffment or Alienation But it was said by some Antea 36 37. that here is not any sale at all nor any lease for the Lessor himself hath not any thing in the Land demised As if a man disseiseth a Feme sole and seaseth the Lands and afterwards marrieth the disseisee he shall avoid his own Lease 5 E 3. One was bound that he should not alien such a Manor the Obligor alieneth one Acre parcell of it the Obligation is forfeit See 29 H. 8. Br. Mortgage 36. A. leaseth to a religious house for 100 years and so from 100 years to 100 years untill 800 years be encurred the same is Mortmain Vide Stat. 7 E. 1. Colore termini emere vel vendere And in the principal Case if the Devisee had entred into a Statute to the value of the Land leased by the intent of the Will the same had been a sale and such was the opinion of the whole Court and by the Court the word in perpetuum shall not be referred to the words precedent but unto the words following scil in perpetuum perdat the Lands And if a custome be in the case that the Infant of the age of 15 years may sell his Lands if he make a Lease the same is not warranted by the custome And afterwards it was adjudged by the whole Court that the Lease made as before was a sale within the intent of the Will of the Devisor CXI Brooke 's Case Hill. 29 Eliz. In the King's-Bench APpeal of Burglary was brought against Brooke who was found guilty and before Iudgment given the Plaintiff died And now Egerton moved that Iudgment should be given for the Queen upon that verdict or at least that the Declaration in the Appeal should be in lieu of an Indictment and that the Appealee be thereupon arraigned and put to answer the same For if the Appellant had been Nonsuit or released the Defendant should be arraigned at the suit of the Queen Coke God hath now by the death of the party delivered the Defendant and it is not like where the Plaintiff releaseth for there it is the default of the Act of the party but here it is the Act of God and he held it for a rule That where auterfoits acquit is a good Plea there also auterfoits convict shall be a good Plea And it was holden in Sir Tho. Holcroft's Case Sir Thomas Holcroft's Case That where the party is convicted at the suit of the Queen there the Appeal doth not afterwards lie Wray If the Appellant dieth before Verdict the Defendant shall be arraigned at the suit of the King But if his life hath been once in jeopardy by Verdict he conceived that it shall not again be drawn into danger and some were of opinion that the Defendant should be arraigned at the suit of the Queen upon the whole Record and plead auterfoits acquit and that they said was the surest way CXII Ognel and Paston 's Case 29 Eliz. In the Exchequer .. 1 Cro. 64. CLement Paston was Defendant in an Action of Debt brought against him by George Ognel upon an Escape and the Case was this Francis Woodhouse was bound in a Recognizance to the said Ognel Whereupon Ognel sued forth a Scire facias and upon two Nihils retorned had
the Lessee entred 29 Sept. which is before the Term begins For the words of the Habendum are From the Feast of St. Michael therefore the Feast of St. Michael is no part of the Term and then was the Defendant a Disseisor and the day after the Term began which cannot alter his Estate but that he continueth a Disseisor and then he is not in by force of the said Lease and so no Rent can be due Williams As the Declaration is here the same is not any disseisin for the Plaintiff set forth in his Declaration That the Lessee the Defendant hath occupied the Land demised the whole year and so hath not admitted any Disseisin it being in his election to make it a Disseisin or not Clench Iustice Be it a Disseisin or not or be it that the Defendant entreth or not he is to pay the Rent Gawdy The Lessee is a Disseisor and continueth a Disseisor and yet Debt lieth against him for the Rent by reason of the privity of Contract which see Rysden's Case 24 H. 8. Dyer 5. And so in our Case Quod fuit concessum per totam Curiam and afterwards Iudgment was given for the Plaintiff CXXII Monings and Worley 's Case Hill. 32 Eliz. In the King's-Bench Rot. 561. Error IN Debt upon an Obligation brought by Mary Worley against Monings in the Common-Pleas The Condition was That if Mary Worley the Plaintiff in the said Action doth not depart out of the service of the Defendant without license of the Defendant Monings nor marry her self but with his consent Then if the Defendant shall pay to the said Mary within twenty eight days after demand by her made of Monings at his house at Waldersey 100 l. That then c. And the Defendant in the said Action pleaded That the said Mary the Plaintiff in the said Action 4 Maii 30 Eliz. departed out of his service without licence The Plaintiff Mary by Replication said That 6 Septemb. the same year she departed out of his service with licence and that 4 Octob. after she demanded the said 100 l. at Waldersey aforesaid and he refused to pay it Absque hoc that she departed out of his service 4 Maii 30 Eliz. without licence and the Writ bare date 18. of October next after the demand And it was found for the Plaintiff and Iudgment given for her in the Common-Pleas and now a Writ of Error is brought by Monings Tanfield The Iudgment ought to be reversed for always the Replication in such cases ought to contain sufficient Cause of Action and sufficient breach of the Condition or otherwise the Plaintiff shall not have Iudgment although that the Issue be found for him as 7 E. 4. 31. In trespass for taking of goods of A. and B. A. pleads Not guilty B. justifies the Plaintiff makes Title to the goods by a gift B. traverseth the gift and it is found for him against the Plaintiff A. is found guilty Now although A. be found guilty yet the Plaintiff shall not have judgment against him for it is found that he hath not any Title to the goods As in Debt upon a Bond against A. and B. A. pleads Non est factum B. pleads the release of the Plaintiff and it is found the Deed of A. and that the Plaintiff hath released to B. the Plaintiff shall never have Iudgment for upon the Verdict it appears that he hath not cause of Action And here in the Replication there is not a sufficient breach shewed of the Condition for although that Mary hath not departed from the service of the said Defendant yet the same is not material but the Defendant had twenty eight days after the demand to pay the 100 l. but the same is not so here for the Plaintiff hath prevented the Defendant for the demand is alledged to be 4. Oct. and the Writ bears date 18. Octob. the same year and so the Defendant had not his time allowed him Gawdy The issue is taken upon the departure out of his service so as the demand is not now material and therefore the alledging of the same is surplusage and shall not hurt And the Defendant hath pleaded in Bar the departure of the Plaintiff out of his service upon which he relieth and the demand set forth in the Replication is not to be regarded as to prejudice the Plaintiff As 3 Ma. Dyer 115. Lessee for years covenants that he will not cut any Trees The Lessor assigns the breach of the Covenant in succidendo twenty Oaks The Lessee pleads that he did not cut the twenty Trees nor any of them The Iury found that the Defendant had cut down ten Trees The Plaintiff upon that Verdict shall have Iudgment for the rest is but surplusage and more put in issue than there needs to be Fenner It is not any full Plea to say That the Plaintiff did not depart out of the service of the Defendant 4 Maii for if she departeth at any other time she shall not recover for which cause she ought to have pleaded That she continued in his service untill such a day and then she departed with his licence and the inducement to the traverse ought to be sufficient matter otherwise it is not a full Plea nor the Traverse is not good And if it be surplusage yet if it be not matter against her self it makes the Plea naught which see 1 H. 7. 29. 6 H. 7. 16. Gawdy conceived that the Iudgment was well given for the Defendant was at his liberty to plead the departure of the Plaintiff without his licence or to stand upon the demand And now although he pleads the departure yet the demand is not confessed And afterwards the Iudgment given in the Court of Common-Pleas was affirmed CXXIII Bashpool 's Case 27 Eliz. In the King's-Bench THE Case was this The Father seised of Lands Stiles Rep. 148. is bound in an Obligation and deviseth his Lands to his Wife untill his Son cometh to the age of twenty one years the remainder to the Son in Fee and dieth and no other Lands descend or come to the Son from his Father It was moved by Godfrey That the Heir in that case at his Election might wave the Devise and take by descent or è contra See 9 E. 4. 18. by Needham But Gawdy and Shute Iustices 3 Len. 118. were of opinion That the Son should be adjudged in by Descent Clench contrary CXXIV Bennet and Shortwright 's Case Trin. 30 Eliz. In the King's-Bench THE Case was 1 Cro. 206. The Defendant sued the Plaintiff in the Spiritual Court for Tythes in kind and now the Plaintiff prayed a Prohibition and suggested That they had used in the said Parish time out of mind c. to take the tenth Sheaf in satisfaction of Tythe of Corn c. and in those years in which the Plaintiff had supposed the subtraction of his Tythes he had severed the tenth Sheaf from the nine parts and the Parson would not take
And the Statute doth not respect the way of carriage but that altogether and to all intents it be the distance of four miles betwixt the place where c. and the said Town of Rye and here it is not material which is the common and usual way to Rye for carriages but the nearness of the place where c. Quomodocunque is the matter and therefore the Defendant ought to have pleaded That the place where c. is every way distant four miles from Rye and as to that that he hath answered four miles with 4000 paces the same is well enough for although he doth not answer the direct the words yet if he doth answer in effect it is well enough for 1000 paces and a mile are all one in substance Wray The distance shall be accounted the nearest way not as a Bird may fly CLII. Wellock and Hammon 's Case Trin. 31 Eliz. In the King's-Bench 3 Co. 20. 1 Cro. 204 205. THis Case is reported by Sir Edw. Coke in his 3 Reports See the principal case there Here is a Limitation and not a Condition for if it should be a Condition it should descend to the Heir at the Common Law which is the Devisee and so shall be extinct in his person and then the restraint is of no effect for there shall be then no means to compell the Heir who hath the Land to pay the Legacies nor have the Legatories any remedy to compell the son to pay the Legacies which shall not have effect if it be not taken by way of Limitation and to that intent Scholasticas Case was cited 15 Eliz. Dyer 317. And this word paying in a Devise shall never be construed to be a Condition And it was holden by the Iustices That where a man deviseth lands to his younger son paying such a sum unto such the Devisee hath a Fee-simple and if he do not pay the monies accordingly his Estate shall determine by the same Limitation and shall go to the heir without any other limitation and the quantity of the monies be it great or small is not material And they were of opinion also that here the monies were not payable but upon request Coke 2 Cro. 56 57. 1 Roll 439. If a man be bound to perform Covenants and one Covenant is to pay Legacies there he needs not pay them without a demand But where one is expresly bounden to pay such a Legacy there he must pay it at his peril And he said That the Case 28 H. 8. Dyer 33. is not Law for there it is holden by Fitz-herbert and Baldwin That where land was devised unto the Prior and Convent of S. Barthol Ita quod reddant annuatim Decano Capitulo Sancti Pauli 5 l. and they fail of payment of it that their Estate shall cease and the Dean and Chapter c. shall have c. such conditions void And that upon one Fee-simple another Fee-simple cannot be limited For by Coke Common experience is otherwise That upon a Fee-simple determinable another Fee-simple may be limited which Gawdy Iustice granted And as to the principal Case Iudgment was given with the limitation CLIII Parker and Harrold 's Case Pasc 28 Eliz. Rot. 485. In the King 's Bench. 3 Len. 142. IN Debt upon an Obligation The Condition was That whereas the Plaintiff and Defendant be now joyntly seised of the Office of the Register of the Court of Admiralty If the Defendant shall permit the Plaintiff to use the said Office and take the profits of it wholly to his own use during his life without lett or interruption done by him that then c. The Defendant Pleaded That the custome of the Realm of England is That the Lord Admiral for the time being might grant the said Office and that such grant should be good but for the life of the Grantor antea 103. and shewed farther That the Lord Clinton Lord Admiral granted the said Office unto the Plaintiff and the Defendant and died and that the Lord Howard was appointed Lord Admiral and that he 27 Eliz. granted the said Office to one Wade who ousted and interrupted him before which time the Defendant did suffer the Plaintiff to enjoy the said Office and to take the profits of it upon which the Plaintiff did demur in Law Coke argued for the Plaintiff That the Plea of the Defendant is not good for he hath not entitled the Lord Admiral to grant the Office for he hath said That the custome of the Realm of England is and that cannot be good for it cannot be tried for a Visne cannot be from the Realm of England Also if it lie through all the Realm then the same is Common Law and not custome which see Br. Custome 59. and see 4 5 Ph. Ma. 152 153. an express Case of the same Office and there he prescribed Per consuetudinem in Curia c. and also that such grant is good but during the life of the Admiral who granteth it Also he doth not answer to any time after the grant of the Admiral Howard for if we were lawfully put out by Wade yet the Defendant against his Bond shall not put us out or interrupt us As 5 E. 4. 115. In a Quare Impedit against an Abbat and the Incumbent who make default upon the distress upon which a Writ was awarded to the Bishop for the Plaintiff upon which the Bishop retorned That the Incumbent had resigned of which he hath given notice to the Prior and lapse incurred and the Bishop collates the former Incumbent and then this Writ came to him Now although the Incumbent be in by Title yet he is bound by the Iudgment So here although the Defendant hath another Title and the former Title of the Plaintiff be determined yet against his own Bond and Deed he shall not put out the Plaintiff c. And the Court was clear of opinion That Iudgment should be given for the Plaintiff but afterwards the Cause was compounded by order of the Lord Chancellour CLIII Bedel's Case Trin. 32 Eliz. In the King's-Bench THE Case was 3 Len. 159. That A. leased to B. certain Lands for 40 l. per ann and a stranger covenanted with A. that B. should pay unto him the 40 l. for the Farm and occupation of the said Lands A. brought an Action of Covenant the Defendant pleaded That before the day of payment the Plaintiff ousted B. of his Farm It was moved by Godfrey that it was no Plea because this is a collateral sum and not for Rent issuing out of Land Also the Defendant is a stranger to the Contract for the Farm But the opinion of the Court was to the contrary for the Defendant hath covenanted that the Lessee shall pay for the said Farm and occupation 40 l. so it is as a conditional Covenant and here is Quid pro Quo and here the consideration upon which the Covenant is conceived scil the Farm and the occupation
take effect by way of use in the Bargainee and after the Statute to draw the possession to the use But the Court utterly rejected that Exception was dangerous Note Pasch 30 Eliz. it was adjudged for the Plaintiff in the Replevin scil the Conveyance of the Prioress was not well pleaded for it ought to be plead as a Bargain and Sale and not as a grant and Judgment was given accordingly for such was the Conveyance of the greater part of the possessions of Monasteries And by Shuttleworth Serjeant Although such a Corporation cannot take an Estate to the use of another yet they may charge their possessions with an use to another CLXIX Venable 's and Serjeant Harris 's Case Mich. 28 29 Eliz. In the King 's Bench. Quaeries Hughs R. 13. 3 Len. 185. 4 Len. 112. THE Case was a Lease was made to A. and B. for their lives the Remainder to Thomas Venables in tail who 3 Eliz. was attainted of Felony 23 Eliz. was a general pardon Thomas Venables 24 Eliz. levied a Fine and suffered a common Recovery to the use of Harris Serjeant An Office is found Harris traverseth the Office and upon that there is a demurrer Leke argued That traverse doth not lie in this Case 4 H. 7. 7. where the King is entitled by double matter of Record the party shall not be admitted to traverse nor to his Monstrans de Droit but is put to his Petition which see 3 E. 4. 23. in the Case of the Earl of Northumberland 3 Len. 75. where the Tenant of the King is attainted of Treason and the same found by Office See also 11 H. 4. in the Case of the Duke of Suffolk and that is not helped by the Statute of 2 E. 6. cap. 8. For the words are untruly found by Office but here the Office is true By this Attainder Thomas Venables is utterly disabled to do any Act for by Bracton a person attaint shall forfeit Patriam Regnum Haereditatem suam 11 H. 4. one was attainted of Felony and before Office found the King granted over his Lands Also he is not helped by the general pardon for before the general pardon he had a special pardon so as the general pardon non operatur But the Iustices said The forfeiture did remain untill the general pardon Harris contrary And he put the case of Sir James Ormond 4 H. 7. 7. where the King is entitled by matter of Record and the subject confesseth the King's title and avoids it by matter of as high nature as that is for the King Traverse in that case lieth and if the King be entitled by double matter of Record if the party doth avoid one of the said Records by another Record he shall be admitted to his traverse and so here we have the pardon which is a Record and that shall avoid the Record of the King See 3 E. 4. 24. in the Earl of Northumberland's Case and here the pardon hath purged the forfeiture in respect of the offence and he said Tenant in tail being attainted of Felony shall not lose his lands but the profits onely for he hath his Estate by the Will of the Donor and there is a confidence reposed in him as in Walsingham's Case he cannot grant his Estate over and see Wrothe's Case An annuity granted pro Consilio impendendo cannot be granted over or forfeited for there is confidence And see Empson's Case and Dyer 2. 29 Ass 60. If the issue in tail be outlawed of Felony in the life of his father and getteth his Charter of pardon in the life of his father after the death of his father he may enter but by Thorp If the issue in tail getteth his Charter of pardon after the death of his father then the King shall have the profits of the lands during the life of the issue And the Case of Cardinal Pool was debated in the Parliament Cardinal Pool's Case 27 Eliz. That he being Dean of Exeter was seised of Lands in the right of his Church and was attainted of Treason It was holden That he should forfeit the profits of such Lands But admit that by this Attainder the Land be forfeited yet the party hath the Freehold until Office found See Nicols's Case on the Commentaries and see also the Case of the Dutchy in the first Commentaries And here the Pardon hath dispensed with the Forfeiture Tenant of the King alieneth in Mortmain before Office found the King pardons it this is good The Lord Poynings conveyed all his Lands to Sir Adrian Poynings who was an Alien and afterwards is made a Denizen and the King pardons him and releaseth unto him all his right in the said Lands without any words of Grant and it was adjudged the same shall bind the King. And he said that he had found a good precedent 14 H. 7. where a general pardon before seisure into the King's hands was allowed contrary after seisure without words of Grant. See Br. 29 H. 8. Charter of Pardon 52. If a man be attainted of Felony and the King pardons him all Felonies executiones eorundem the same shall not serve for life and Land if no Office be found but it shall serve for the Goods without words of Restitution and Grant for the King is entituled to them by Outlawry without Office but the King is not entituled to the Lands untill Office be found See ibid. 33 H. 8. 71. The Heir intrudes and before Office found the King pardons now the Heir is discharged as well of the issues and profits as of the Intrusion it self and also of Livery But a pardon given after Office is available for the Offence but not for the issues and profits And he cited the Case of Cole in the first Commentaries where a pardon was granted Mesne betwixt the stroke and the death See 35 H. 6. 1. 1 E. 4. 1. 8 Eliz. Dyer 249. Brereton's Case 11 Eliz. Dyer 284 285. Egerton Solicitor to the contrary This Traverse is not good for he that traverseth hath not made Title to himself as he ought upon which the Queen may take Issue for it is at the Election of the Queen to maintain her own Title or traverse the Title of the party At the Common Law no Traverse lay but where the Livery might be sued but that is helped by the Statute of 34 E. 3. cap. 14. but where the King is entituled by double matter of Record as in our case he is no Traverse is allowed until 2 E. 6. cap. 8. And in such case two things are requisite 1. That the Office be untruly found 2. That the party who is to be admitted to his Traverse have just Title or Interest of Estate of Freehold c. But in our case The Office is confessed by the Traverse to be true although that the Conveyance be not truly found Also Harris at the time of the Office found had not just Title but an interest came unto him long time after
not in the King without Office in the life of the party attainted upon the words of the Act shall forfeit See Stamford Prerogat 54 55. acc He said That this interest which came unto the King by this Attainder is but a Chattel and then it is remitted by the Pardon and so he conceived if it be a Freehold For the words of the general Pardon are large and liberal Pardon and release all manner of Treasons c. and all other things Causes c. and here Forfeitures are pardoned and this word things is a transcendent c. and although it be a general word yet by the direction of the Act of general Pardon it ought to be beneficially expounded and extended as if all things had been specially set down Also the words are Pardon them and their Heirs therefore the Pardon extends to Inheritance for otherwise there is no use of that And he conceived That by the first branch of this Act that the same extends to Inheritances and to acquit the Lands of all incumbrances for every Offence not excepted for there is the word Heirs and the third branch concerns onely Chattels and that is by the word Grant where the first is by words of acquittal See 33 H. 8. br Charter of Pardon 71. Tenant of the King dieth seised the Heir intrudes Office is found by Pardon of Parliament all Intrusions are pardoned in that case the Offence is pardoned but not the issues and profits of the Lands but by a Pardon before all is pardoned But here in our case the Office is not void for the Statute makes all Precepts Commissions c. void being awarded upon such forfeiture See also in the second branch Vexed or inquieted in Body Goods or Lands and see also among the Exceptions That persons standing indicted of wilfull Murther and Forfeiture of Goods Lands Tenements grown by any offence by such person By which he said that if such Exception had not been the Land of such person if he had been attainted upon such Indictment should be forfeited as to the Traverse he said That because the Office is true our Plea is in the nature of Monstrans de Droit although it concludes with a Traverse We vary from the Office in number of the persons and in the day of Feoffment and every circumstance in case of the King is to be traversed and our Plea in substance confesseth and avoideth the Offence Although that here the King be intituled by double matter of Record scil the Attainder and the Office yet one of the said Records scil the Attainder is discharged by another Record scil the Pardon and then but one Record remains scil the Office and therefore our Traverse well lieth And he said that by the common Law there was a Traverse as where it was found by Office that the Lessee of the King had committed Waste or had cessed for two years and that in such case the Lessee and Tenant in an Action brought against them may traverse the Offence therefore there was a Traverse at the common Law where the King was entitled by single matter of Record So upon Office finding Alienation without Licence there was a Traverse by the common Law See Traverse in such case in the Case of William de Herlington 43 Ass 28. See Br. Traverse of Office 54. Petition is by the common Law and Traverse by the Statute Frowick in his Reading See Stamf. Prerogat 60. That Traverse in case of Goods was at the common Law but for Lands by Office by 34 E. 3. 14. for before the remedy was by Petition See Co. 4. part the Sadler's Case 55 56. Traverse was at the common Law concerning Freehold and Inheritance but that was in special Cases scil when by the Office the Land is not in the King's hands nor the King by that is in possession but onely by the Office is entitled to an Action and cannot make a Seisure without Suit for there in a Scire facias brought by the King in the nature of such Action to which he is entitled the party may appear to the Scire facias and traverse the Office by the common Law. It was adjourned CLXX Scott and Scott 's Case Mich. 29 Eliz. In the King 's Bench. 1 Cro. 73. 3 Len. 225. 4 Len. 70. IN a Replevin betwixt Scott and Scott the Case was George Scott 2 H. 8. being Tenant in tail of certain lands suffered a common Recovery to the use of his last Will and 15 H. 8. made his Will by which he did declare That the Recoverors should make a good and favourable Lease to Hugh Scott his younger brother and 25 H. 8. they make a Lease of the same land to the said Hugh for 199 years according to the Will of the said George Scott rendring Rent 11 l. 6 s. 8 d. payable at the Feast of the Annunciation and S. Michael by equall portions and that to the Recoverors their Heirs and Assigns and there was a Covenant that after the death of the Recoverors the said Rent should be paid to Cestuy que use his Heirs and Assigns any thing in the said Indenture notwithstanding Proviso That if the Lesse make his Heir male his Assignee of that term that then he shall pay the said Rent to the Recoverors their Heirs and Assigns and the Lessee shall not pay the Rent to the Heirs of Cestuy que use upon which a Distress is taken and thereupon a Replevin brought Drew argued for the Plaintiff When a Condition is created the Law saith That it shall be taken and construed favourably in the behalf of him who is to perform it As if one be bounden to appropriate such a Church to such a house before such a day at his own costs and the Obligor grants a Pension out of the said Parsonage and afterwards appropriates the said Church it was holden that the Condition was well performed 3 H. 7. 4. A Lease for years upon condition to scowre the Ditches if the Lessee scowreth them once it is well enough And as to this word Proviso It is to see If here it be a word conditional In some Cases this word Pro makes a Condition as 45 E. 3. 8. Grant of a Ward pro bono servitio if the Grantee departeth out of his service the Grant is void So if an Annuity be granted unto a Physician pro consilio impendendo the same is a Condition 41 E. 3. 6. For the Grantor hath not means to compell the Grantee to give his Council but in some Cases this word Pro doth not make a Condition As if before the Statute of West 3. Land was given pro homagio suo there if the Homage be not done the Feoffor could not re-enter but he ought to distrain And I conceive that in our Case Proviso doth not make a Condition 7 H. 6. 44. A Feoffment in Fee with Warranty Proviso that the Feoffee shall not vouch So a Grant of a Rent-charge Proviso that the Grant shall not
Covenant wherein the breach was assigned was That if R. W. Brother of the Plaintiff should say Make assurance of such a Manor to the Defendant as the Council learned of the said Defendant should advise Then if the Defendant pays unto the Plaintiff 50 l. the Obligation to be void The Defendant by advice of Council demanded a Release with Warranty c. And by Periam and Windham The same is not any Assurance but a means to recover in value Anderson contrary That it was a Collateral Warranty c. CLXXIII Cropp and Hambleden 's Case Hill. 28 Eliz. In the King 's Bench. 1 Cro. 48. IN Trespass by Cropp against Erasmus Hambleden upon the special Verdict the Case was That one Martin Hastings was seised of the lands where c. in the right of his wife for the life of the wife and that they both did Lease unto the Defendant for years rendring Rent payable at the Feast of S. Michael and the Feast of the Annunciation c. with clause of re-entry if the Rent be behind by a Month after any of the said Feasts and after the feast of S. Michael 26 Eliz. and before the Month expired the Lessee the now Defendant sent his servant unto the house of the Lessor for to pay to him the Rent then due the servant went unto the house of the Lessor and there asked for him to whom it was answered by one Mary Briggs daughter of the wife of the Lessor who there dwelt in the said house with her mother that the Lessor was not at home for which the said servant delivered the said Rent to the said Mary requiring her to deliver the same over to the Lessor upon his retorn to the house in the name of his servant Mary reserved the said Rent and upon the retorn of the Lessor at his house told him all the matter aforesaid and that the servant of the Lessor the Defendant had required her to tender the said Rent to the Lessor in the name of the Defendant and thereupon offered and tendered to him the said Rent and the Lessor refused it And the Iury found That the third half year before the tender mentioned before the Lessor commanded the said Mary to receive the Rent then due who did accordingly and that the next half year then following the said Mary did receive the said Rent without commandment of the Lessor but after the Lessor agreed unto it and that the immediate half year before this tender in question the Defendant paid the Rent then due to the Lessor himself who received it And it was the opinion of Wray chief Iustice that this tender was good and it is not like unto the case of an Obligation for there the Obligee cannot have an Action of Debt before the last day but here the Lessor might have distrained or have had an Action of Debt before the Month expired and so the Lessor is bound by this tender and by Gawdy Iustice This tender cannot be said a tender by a stranger for here Mary came in privity of the servant of the Lessee and as it is found by Verdict Mary tendered it to the Lessor as being requested by the servant of the Lessee And afterwards upon consideration had betwixt the Iustices themselves the Iustices viz. Clench Gawdy and Wray for Shute was then sick it was clearly resolved against the Plaintiff and that the said tender as it is found in the Verdict is a good and sufficient tender and the Lord Wray delivered the reason as before and farther said That if the said Rent had been reserved payable at the feasts aforesaid or within a Month after each of them there the tender as above had not been good nor should bind the Lessor for in such case the Lessor could not distrain or have an Action of Debt for the said Rent before the Month expired And this is a case of extremity and deserves no favour and here is no mischief to the Lessor for he might have had his Rent in due time if he would and his captious refusal shall not avail him And Iudgment was given accordingly CLXXIV Bostock and Covert 's Case Trin. 33 Eliz. In the Common-Pleas BOstock and his Wife brought a Writ of Dower against Covert son and heir of her former Husband who pleaded That the Husband of the Demandant was seised of Lands amounting to the number of 300 Acres and held the same by Knights-service and died seised after whose death by virtue of the Statute of 34 and 32 H. 8. he entred into 100 Acres of the said Lands as the third part of the said Lands descended and held the same in severalty being the third part of the clear yearly value of the whole discharged of a Dower and that the Wife ought to have all her Dower out of the two parts devised And Anderson said That the Plea was not good for the heir who will take advantage of the Statute in that point ought to enter generally as Tenant in common with the Devisee and then in a Writ of Dower it is a good Plea so if after his entry as Tenant in common Partition be made betwixt him and the Devisee such a Plea is good but here he hath entred severally into a third part distinct from the residue and so hath ousted the Devisee of a third part severally for which cause he cannot have advantage of this Plea To which the rest of the Iustices Non contradixerunt CLXXV Sir John Southwel 's Case Pasch 37 Eliz. In the Exchequer 3 Len. 147. SIR John Southwel of the County of Lancaster 7 Julii 19 Eliz. made a Conveyance of his Lands to divers Feoffees and their Heirs upon condition that they should find him and his Wife and so many persons in his house c. prefer his Daughters in marriage pay his debts c. And if there fell out at the years end upon accompt made by the Feoffees any surplusage that then at the end of every such year they should answer such surplusage as should then remain in their hands unexpended of the Rents and profits of his said Lands with clause of revocation c. Afterwards the said Conveyance being in force came the Statute of 23 Eliz. concerning Recusants upon which Statute the said Southwel is now endicted and afterwards upon a Commission issuing out of the Exchequer to the Sheriff of Lancaster to enquire of the Lands of the said Southwel although against the said Conveyance it was given in Evidence That after the said Conveyance the said Sir John Southwel had granted Trees from off the said Lands and had received Fines and Incomes for Leases c. yet the Iurors charged to enquire would not find that the said Sir John Southwel had any Lands c. And by special command from the Queen it was referred out of the Exchequer to all the Iudges of England If the Lands of the said Sir John Southwel conveyed as aforesaid were subject to the said
The Queen gave and granted the Reversion in Fee to Sir Thomas Henage c. and after it was found by Office that the Rent was arrear ut supra Sir Thomas Henage entred and leased for years to Sir Moil Finch who being ejected brought a Quo minus in the nature of an Ejectione Firmae c. It was argued by Coke That this Lease upon the matter aforesaid is avoidable by the Patentee and that without Office for the conclusion of the Proviso is not that the Queen shall re-enter but that the Lease shall cease and be void and the Queen is not driven to demand her Rent as in such case a Subject is tied And he compared it to the Case of a common person If a common person leaseth for years upon condition that if the Lessee doth not build upon the Land demised a House within a year after that the Lease shall be void and afterwards grants the Reversion to a stranger the Grantee shall have advantage of this Condition be it broken before or after the Grant for the Lease in such case is void not onely voidable and the reason is because the Condition is collateral which see 11 H. 7. 17. A Lease for years is made upon Condition that if the Lessee doth not go to Rome before such a day that the Lease shall be void the Lessor grants the Reversion over the Lessee attorns and doth not go to Rome within the time appointed the Grantee may re-enter contrary if the conclusion of the Condition had been by way of re-entry for then it should run in privity by the Common Law But where a Lease with such Condition was made for life with this conclusion of the Condition that the Lease shall be void the Grantee shall not take advantage of that by the Common Law for there the Estate is not void untill re-entry for there is a Freehold which ought to be avoided by Entry But in our Case the Condition is upon the matter collateral for no demand is requisite to take advantage of the Condition And he said it is a general Rule where in the Case of a common person an Estate may be devested without Entry there in the Case of the Queen there needs not any Office but here in our Case if it had been a Case of a common person the Estate should be devested without Entry therefore in the Case of the Queen without Office See Stamford for the Major Proposition 55. but it doth not vest to have Trespass before Entry and he vouched the Case of Browning and Beston Plow 136. where such Lease after such Condition broken is merely void and dissolved And he said That it was the Opinion of the Iustices of the Common Pleas now late That by a Release to such Lessee after the condition broken nihil operatur for after the Condition broken he is but Tenant at sufferance and a Lease for years being but a Cattel may begin without ceremony and end without ceremony 2 H. 7. 8. If the King make a Lease for years with clause of Re-entry for not payment of the Rent although the Rent be behind yet the King shall not re-enter before Office found and there ought to be a Seisure for the Lease is not void by the non-payment of the Rent but onely voidable but if the Lease be void for not payment as in our case it is to what purpose shall an Office be for by the mere contract the Lease ceaseth without re-entry or without Office But admit that the Lease shall not cease without Office and before Office the Queen grants the Reversion over yet an Office found after the Grant shall avoid the Lease as well as if it had been found before the Grant. A Lease is made upon condition that if the Lessor build a House upon the Land leased and pay to the Lessee 20 l. that then the Lease shall be void the Lessor builds the House and afterwards grants the Reversion the Grantee pays the 20 l. now the Lease is void although the Condition be partly performed in the time of the Lessor and partly in the time of the Grantee So here although the Grant of the Queen be Mesn between the non-payment of the Rent and the Office for the Queen is not entitled by the Office to the Land but by the Condition broken and the Office is onely to inform the Queen of her Title and when the Office is once found it shall relate unto the time of the Condition broken and shall be of such force as if then it had been found H. 3. H. 7. f. 3. Cro. 221. and here in our case an Office was necessary for to entitle the Queen to the mean profits due betwixt the Rent arrear and the Grant of the Queen with which the Queen by her Grant hath not dispensed and without Office he could not have them for the arrearages of the Rent do not pass to the Patentee no more than if the Queen be seised of an Advowson and the Church become void if the Queen Grant the Advowson unto another the avoidance shall not pass The King seised of a Rent which is arrear grants the said Rent the arrearages shall not pass So here of the mean profits for they are flowers faln from the stalk c. Godfrey contrary and he said That the Lease is in being not impeached by the Condition or the Office and he said That notwithstanding that the words of the Lease are That the Lease shall be void yet before that an Office be found the Lease shall not be avoided In all cases where the Queen is entitled to any thing or to defeat the Estate of another an Office is necessary and that ground is taken in the case of the Lord Berkley Plow Com. 229. by Brown therefore here it ought to be found by Office See also the case of the Bishop of Chichester Fitz. Abridg. Forfeiture 18. 46 E. 3. The Bishop leased for life certain Lands given by the Progenitors of the King as parcel of the Barony of the Bishoprick rendring 30 l Rent and afterwards by assent of the Dean and Chapter released a great part of the said Rent the Lease and the Rent ought to be found by Office. So an Alienation in Mortmain ought to be found by Office because the interest of another is to be defeated So where the King's Tenant ceaseth c. the Villein of the King purchaseth Lands or but a Lease for years So where the King is but to have annum diem vastum Waste committed by the Committee of the King Lessee of the King for years makes a Feoffment in Fee in all these cases the King without Office shall not be entitled The same Law is in case of a Condition broken which see 2 H. 7. 8. Plow 213. Frowick in his Reading puts this case A Subject leaseth for years upon condition which is afterwards broken and afterwards the Lessor becomes King here needs no Office for at the time
of the breach of the Condition the Lessor was not King. Forbisher and Bunny's Case The Case betwixt Sir Martin Forbisher and one Bunny was that the Queen made a Lease of Dutchy Land upon Condition which was broken It was holden that here there needs not any Office for the Queen had those Lands severed from the Crown by Parliament and they passed by the Dutchy Seal by Livery and attornment of the Tenants The Queen leaseth for years Proviso that the Lessee shall not alien such alienation against such a Condition ought to be found by Office and therefore at this day where a Forfeiture is given to the King c. by Statute the words are That the King shall be seised without Office And as to the Relation of an Office he said That an Office may have a Relation as to mean profits but not as to vest the interest from the time of the Title accrued And although that in the Grant of the Queen to Sir Thomas Henage there be these words Non obstante the not finding any Office yet in this case an Office is necessary for the Queen cannot dispense with the Law so to alter or change the Law as to make Lands in Borough-English descendable at the common Law So if the King make a Lease for years with clause of re-entry and afterwards grants the Reversion over to a Subject and farther grants that if the Rent be behind that the Lessor may re-enter without demand yet the Grantee ought to demand the Rent And as our case is here there needs not any Office to entitle the Queen to the Mean profits for although that the Rent was not paid at the day yet it was paid after and all Rent due afterwards and Acquittances given for the same which matter we have specially pleaded to the intent aforesaid upon which the other side have demurred and thereby have confessed it c. But this Office doth not give any interest to the Queen in the thing leased for she hath granted them over before by which she hath disabled her self to take advantage of the Condition aforesaid for she hath surceased her time 8 H. 5. Traverse 47. Tenant for life forfeits his Estate and before the King seiseth The Tenant for life dieth he in the Reversion may enter and the King shall not seise for the King hath surceased his time And if the Queen should have advantage of this Condition she should avoid her own Grant which should be a great inconvenience The Queen leaseth for years Proviso that the Lessee shall not do Waste the Queen grants over the Reversion after Waste done Office is found the Queen gains nothing by it It was agreed in the Case betwixt Knight and Beech 28 Eliz. That the Grant of the Queen Mesn between the award of the Commission and the Retorn of it was good for the Title of the Queen appeareth of Record although that the Commission was not retorned before the Grant made And if an Office should relate unto the time of the Condition broken it should be in vain to argue that point for in the said case it was holden a Record when the Iurors had put their Seals to it before that it be enrolled The acceptance of the Rent and the Acquittances thereof are pleaded 1. To prove that there is no cause to find an Office in this case for the Queen is answered the Mean profits 2. To prove that the Queen hath waved and refused to take the benefit of the Condition but not to conclude the Queen and then you cannot force her to take the benefit of the Condition As the King Lord and Tenant the Tenant dieth his Heir within age the King accepteth of the Services of the Heir and afterwards grants over the Seignory after Office is found the King shall not have the Wardship c. At another day it was argued by Popham Attorny General for the Plaintiff and he said That upon not payment of the Rent the Lease is ipso facto void without any Office found thereof and that by reason of these words shall not be void for he said it is not a Condition but rather a limitation As if the King make a Lease to three for eighty years si tam diu vixerint one of them dieth the Lease is determined without Office So a Lease made vy the Queen for years so long as the Lessee shall pay the Rent reserved or so long as the Lessee shall there inhabit In these cases upon a Lease made by a common person the Lessor before Entry might grant over and the Grantee shall have advantage of it for it is a limitation and by the limitation the Lease is determined before the Grant contrary if it had been by words of re-entry A Lease for sixty years Proviso that if the Lessee shall die within the term that the Lease shall cease the Lessor grants the Reversion over the Grantee shall take advantage thereof by the common Law See the Case 11 H. 7. 17. it is a limitation and not a Condition And he said in this case an Office is necessary not to avoid the Lease for that was void before nor to punish the Lessee as a Trespassor or to fine him for the continuance of his wrongfull possession but to make him responsable as an Accountant In the Lease of a common person where the clause is That the Lease shall cease If after the Rent behind the Lessee continueth his possession yet the Lessor shall not punish the Lessee as a Trespassor before his Entry for the Lessee by his continuance is but Tenant at sufferance for his first Entry was lawfull And he agreed the Books 14 H. 8. and 2 H. 7. That such advantages that a common person cannot have without Entry the Queen cannot have without Office But a common person before Entry cannot punish another by way of Trespass therefore neither the Queen without Office shall punish one as an Intruder And as to the Case now lately adjudged betwixt Knight and Beech the same doth not extend to our Case Knight and Beech's case for there an Office was requisite before the Grant of the Queen because the per-close of the Condition was That the Prior should re-enter and it is very clear That Chattels vest in the Queen without Office. And in this Case an Office is necessary for two purposes 1. To make the Grant good 2. To make the Occupier accountable for the Mean profits and to give recompence which the Queen is not enabled unto without Office. And here the Patentee shall have advantage of the cesser of this Lease For 1. He hath the Inheritance lawfully and 2. The Lease is determined If there were no Non obstante in the Letters Patents the said Lease ought to have been recited if it had not been determined and if it be determined as this case is it ought to be recited if there were not a Non obstante for non constat to the Queen if it
the Case of making this Statute it was not to overthrow a foundation as it hath been said but it was rather a gratuity of the Subjects to the King for his bounty towards them for whereas by the Statute of Vses Vses were executed in possession so as the Subjects could not dispose of their Lands by their Wills as before the Vses Now by this Statute the King was pleased to give his Royal assent to an Act by which Lands might become devisable in respect of which the Subjects added to this Act the last clause to give him Wardship where it did not lie before by the Common Law and that as a recompence from the Subjects for the King's bounty and therefore it ought to be construed beneficially for the King. And to prevent covin and fraud was not the scope of this Statute For if three purchase Lands unto them and to the heirs of two of them now it is uncertain whose heirs shall inherit for non constat which of them shall survive and therefore no covin is averrable in such case and yet if the survivor of two to whom the Fee is limited dieth his heir within age such heir shall be in Ward So if such Lands be given to two and to the heirs of him of those two who shall first come to the Church of Paul Now it is uncertain which of them shall first come to the Church of Paul yet if he who first cometh to the Church of Paul dieth his heir within age he shall be in Ward which Cases prove that covin and fraud were not the cause of making this Statute but onely the thankfulness of the Subjects unto the King for his bounty as abovesaid for if this Act had not been made the Subjects should not have power to dispose of their Lands for the advancement of their children but all should descend So as now the King hath lost the Wardship and Primer seisin of two parts of the Lands of his Tenant and hath also lost the averment of covin which he had by the Common Law where Estates were made by the King's Tenant for advancement of their children In respect of which losses the Subjects gave unto the King Wardship in case where the Lands continue in jointure as to that which hath been said That this Statute shall not be taken by equity I conceive the contrary the words of the Statute are In every such case i. e. In every like case not onely where two or more persons hold jointly to them and the heirs of one of them but also in every the like Case as the Case now in question and in every Case where the life of him who hath the Freehold is the sole impediment quo minus the heir hath not the Land by descent in Demesne And it may be resembled unto the Statute of Marlbridge of Collusion which speaks of Leases for years Quas tradere voluerint ad terminum annorum and yet a Lease for life or Lease for years is within the said Statute for the Statute was made in restraint of an ill liberty that the Tenants had by the Common Law in prejudice of their Lords which see 4 E. 6. 53. Plow 59. And as to the word otherwise that may be construed for payment of his Legacies And as to equity enlarging the Statute speaks where many hold and to the heirs of one yet if two hold to them and the heirs of one of them the same is within the Statute And as to Equity restraining he puts this case Land is given to the Husband and Wife and the heirs of the body of the Wife who have issue the Wife dieth the issue within age he shall not be in Ward and yet he is within the Letter of the Statute but because that other matter That the Estate for life in the Husband is an impediment Quo minus he shall be in Ward It is a maxim of the Common Law That the father shall have the Wardship of the son and heir apparent therefore he shall not be within the meaning although he be within the Letter of the Statute So if Lands be given to my Villain and to another and to the heirs of my Villain who dieth seised his heir within age I seise the Villain and claim the remainder he shall not be in Ward and yet he is within the Letter of the Statute But I conceive in our Case the King shall have two Wards Simul semel the heir general of Wiseman and the issue in tail the heir general by the Common Law by reason that his father was the King's Tenant who disposed of his Lands for the advancement of his children and therefore the Queen shall have the third part in Ward And also the heir special shall be in Ward for that part of the Statute And it is no new thing to have two Wardships for one and the same Lands As 14 H. 8. of the heir of Cestuy quae use and also of the Feoffee and if the Tenant dieth seised having issue a daughter who is his heir the Lord seiseth the daughter and marrieth her and afterwards a son is born he shall have the Wardship also of him So of the heirs of the Disseisor and Disseisee and he said If Lands holden in chief be leased for life the remainder to A. in Fee A. dieth his heir within age he shall be in Ward and that by reason of these words in the Statute In every such case it is not the same Case but the like Case for if he who hath the Fee dieth so as the Freehold survives to the other now the Estate becomes as an Estate for life the remainder over It was adjourned CLXXXIV The Lord Howard and the Town of Walden 's Case 24 Eliz. In the Exchequer More Rep. 159. Post 162 163. BEtwixt the Lord Howard and the Town of Walden the Case was That the King made a Feoffment in Fee of Lands parcel of his Dutchy of Lancaster Tenend in feodi forma reddend inde sibi haeredibus suis aut illi cui de jure reddi debet 10 l. The question was How and of whom the Tenure should be It was argued by Plowden That it should be holden of the King as of his Dutchy he said The King is not bounden by the Statute of Quia emptores terrarum but here upon this Feoffment the Feoffee shall hold of the King as of his Dutchy All Grants of the King notwithstanding that they be of Lands yet they savour of the person of the King and his Prerogative being wrapt up in his person shall guide the disposition of the land and he said that this Tenure shall be implyed by reason and in respect of his person And the Statute of Quia emptores terrarum extends to Tenants onely Libere tenentes magnatum aliorum but the King is not Libere tenens alicujus magnat 32 H. 6. 21 22. The King hath an Advowson in the Right of his Dutchy to which
first Fine doth not make any discontinuance and yet he conceived it is not altogether void against the issues before that they enter for no Right remains in the Conusor against his Fine and he conceived also that this clause ex uberiori gratia nostra did extend to pass more than passed before for he conceived that the Queen intended more liberally viz. the Reversion for this same is not any matter of Prerogative but this is a matter of interest which might even in the Case of the King pass out of the King by general words And see 3 H. 6. 6 and 7 Br. Patents A Grant of the King ex insinuatione shall not hinder the force of the words ex mero motu And the opinion of the Court was That the Reversion which was in the King did not pass by this Grant For the scope of the whole Patent was as was conceived to grant the same onely which the Queen had ratione attincturae Anderson held the Patent insufficient because that the Prohibition was not full and certain Also he said That ex speciali gratia c. would not help this Case if it were well argued for the Estate tail is not well recited but onely that he was seised de Statu haereditario c. so as the Queen was deceived Periam contrary The Queen was apprised well of the mischief and Grant aforesaid viz. of such Estate with which he departed by the Fine And as to the other point it was the opinion of Walmsley That the Fine with Proclamation did bind the Entail And as to the Objection which hath been made That the Conusor at the time of the Fine levied was not seised by force of the Entail the same had been good matter to avoid a common Recovery to alledge such matter in the Tenant to the Praecipe but not to this purpose for if Tenant in tail levieth a Fine although he was not seised at the time of the Fine levied by force of the Entail yet such a Fine shall bind the issues So if the Tenant in tail doth discontinue and disseiseth the Discontinuee and so levieth a Fine And he conceived That the issue in tail is bound by the Statute of 4 H. 7. even of the Gift of the King. And see 19 H. 8. 6. and 7. where it is holden That the issue in tail is bound by the Act of 4 H. 7. And whereas it hath been objected That it doth not extend but to such Fines which make a discontinuance at the Common Law the same is not so for if Tenant in tail of a Rent or Common levieth a Fine with Proclamation it is very clear that the issues shall be barred thereby And he relied much upon the Book of 29 H. 8. Dyer 32. Tenant in tail of the Gift of the King levyeth a Fine or suffereth a common Recovery although it be not a discontinuance because the Reversion is in the King yet it is a bar unto the issue But note That that was before the Statute of 34 H. 8. And see now Wiseman's Case 27 Eliz. Co. 2. part and see the Lord Stafford's Case 7 Jacob. Co. 8 Reports fo 78. CXCII Pleadal 's Case 21 Eliz. In the King's-Bench THe Case was That a man seised of Lands in fee took a Lease by Indenture of the Herbage and Pawnage of the same Land It was the Opinion of the whole Court that the same was no Estoppel to him to claim the Soil or the Freehold And it was said by Plowden and agreed by the Court That if the Father and Son be joint-Ioint-tenants for an hundred years and the Son takes a Lease of his Father of the Lands for fifteen years to begin c. the same shall conclude the Son to claim the whole term or parcel of it by Survivor CXCIII 21 Eliz. In the Star-Chamber NOte That in the Star-Chamber it was resolved by the Advice of many of the Iustices That an Infant having levyed a Fine may declare the uses upon it and such Declaration is good notwithstanding his Nonage and Mr. Plowden affirmed 2 Co. 10 42 57. that so it was adjudged in his own Case by which he lost Lands of the yearly value of 40 l. So a Declaration by a man in duresse is good which Anderson denyed CXCIV The Lord Awdley 's Case 21 Eliz. In the Court of Chancery THE Lord Awdley 12 H. 7. enfeoffed Hoddy and others of certain Lands in the County of Sommerset Dy. 166 324 325. and afterwards by Indenture reciting the said Feoffment and the date of it and also that it was to the intent that his Feoffees should perform his Will as follows in effect viz. My Will is 6 Co. Sir Ed. Cloer's Case That my said Feoffees shall stand seised to the use That the said Hoddy shall receive of the yearly Profits of the said Lands one hundred pounds which he had lent to the said Lord Awdley and also stand seised to pay all his Debts upon Bills signed with his Hand and after the Debts paid That the said Feoffees shall make Estate of the said Lands unto him the said Lord Awdley and Ioan his Wife and to the Heirs of their Bodies c. with divers Remainders over The said Lord had issue by the said Joan and also had issue by a former Wife a Daughter The Feoffees never made any Estate to the said Lord and his Wife And it was the Opinion of divers of the Iustices and Sages of the Law That upon this matter no use was changed for it is not a last Will but an intent And although that the Feoffees shall be seised unto the use of the Feoffor and his Heirs because that no consideration was for which they should be seised to their own use yet the same cannot make a new use unto the said Lord and his wife in tail without conveying an Estate for the wife is a stranger unto the land and also to the other use And it cannot be a Testament or last Will for the Estate mentioned in the said Writing ought to be made to the said Lord and his wife who cannot take by his own Will. And this matter was depending in the Chancery and the advice of the Iustices being there required they did deliver their opinions That by this Writing no use was changed nor any Estate vested in the said Lord and his wife and a Decree was made accordingly untill proof might be made of such an Estate made CXCV. Borough and Holcroft 's Case 21 Eliz. In the King 's Bench. Co. 3. Inst 31. 4 Co. 45. IN an Appeal of Murther by the son of the Lord Borough of the death of his elder brother Henry Borough against Thomas Holcroft who pleaded That heretofore he had been indicted of the Murther of the said Henry Holcroft before J. S. Coroner of the Verge and also Coroner of the Country of Middlesex within which County the Verge was and upon that indictment he was arraigned and confessed the
for the abatement of a Writ As in a Praecipe quod reddat the Tenant acknowledgeth himself to be Villein to a stranger the Writ shall abate without any averment if Frank and of Frank Estate for the Law presumes that the Tenant would not enthral his condition Wray to the same intent But the Demandant may confess and avoid the Fine as to say That he that levyed the Fine was his disseisor upon whom he had before entred c. And if Tenant in Fee-simple be impleaded and he saith that he is Tenant for life the remainder over to A. in Fee and prayes in aid of A. the Demandant shall not take averment that the Tenant the day of the Writ purchased was seised in Fee. Note that in this fine Ioynt-tenancy was pleaded but to parcel It was holden by Wray and Southcot that the whole Writ should abate As in a Writ the misnosmer of one shall abate the whole Writ against all the Defendants and so where the Demandant enters into parcel of the land in demand if the thing in demand be one intire thing it shall abate the whole Writ In this Case the Demandant ought to have in his Writ de Forsprise of the land in demand whereof the Ioynt-tenancy by Fine is pleaded per availe and under the gift of which the Formedon is conceived and therefore in respect of the title of the Demandant it remains in right parcel of the Manor and therefore ought to be demanded accordingly with an Exception But if A. give to B. a Manor except ten acres in tail there if after upon any discontinuance the issue in tail have a Formedon in such case there needs no exception for the said ten acres were never after the gift parcel of the Manor which was given in tail for they were severed from the Manor upon the gift but if land in demand was several as twenty acres except two an exception is not good for he might demand eight acres See E. 1. F. N. B. 866. Praecipe unam bovat terrae except a Seleon and the Writ was abated for every demand ought to be certain but a Seleon is a parcel of land uncertain as to quantity in some places an acre in some more in some less Another point was That because the Tenant hath admitted and accepted this averment scil sole Tenant as the Writ doth suppose If the Court notwithstanding the admittance of the Tenant ought without exception of the party Ex officio to abate the Writ and Wray conceived that they should for it is a positive Law as if a woman brings an appeal of murther upon the death of her brother and the Defendant doth admit it without challenge or exception yet the Court shall abate the appeal 10 E. 4. 7. And see the principal Case there Non ideo puniatur Dominus and if an Action be brought against an Hostler upon the common custome of the Realm and in the Writ he is not named common Hostler and the Defendant doth accept of such Writ without exception to it yet the Court shall abate the Writ Ex officio 11 H. 4. 198. and 38 H. 6. 30. CXCVII 24 Eliz. In the King 's Bench. Antea 150. More Rep. Saffron Walden's Case THE Case was this King Henry the 8. seised of certain lands in the right of his Dutchy of Lancaster Granted them unto another Tenend in Fee-farm Reddend dicto Dom. Regi haeredibus suis aut illi cui de jure reddi debet 10 l. And if this land should be holden of the King in Capite or holden of the Dutchy was the question Egerton Solicitor general argued much upon the Statute of 1 H. 4. by which the Dutchy and possessions thereof were severed from the Crown See Plowden in the Case of the Dutchy of Lancaster 213. And see ibid. the Statute of 1 H. 4. Entituled Charta Regis Hen. 4. 1. De separatione Ducatus Lancastr à Corona by which it is enacted That the Dutchy of Lancaster taliter tali modo deducatur gubernetur pertractetur c. ac si ad culmen dignitatis Regiae assumpti minime fuissemus So as by that Act the Dutchy is dis-joined from the Crown and in such point as to possession as it was in a common person But the possession of the Dutchy doth not bind the person of the King as 10 H. 4. 7. The King brings an Action for certain Lands to him descended from his Vncle the Duke of Lancaster and the Writ was Non omittas propter aliquam libertatem and exception was taken to the Writ because that such clause ought not to be in the King 's Writ but where the King sueth as King but that Writ he sueth as Duke of Lancaster but the exception was not allowed The King cannot sue otherwise but as King for the person of the King ought not to be measured according to his possession so as it was a severance in order survey government and process and not in respect of the person But after the Statute of 1 H. 4. The said Act of Separation was repealed and farther enacted that the said King should hold the said Dutchy to him and his heirs Kings of England so as thereby the Dutchy is settled in the politick Body of the King afterwards came the Statute of 1 H. 7. by which it is enacted That the King shall hold the said Dutchy and the possessions thereof in such manner and form and so separated from the Crown as King Henry the fourth and King Henry the fifth did hold the same so as the Dutchy was devested out of the Body politick of the King where it was setled 1 H. 4. and vested in the Body natural of the King so as the possession of the Dutchy as to their government c. are in the King as they were in the Duke of Lancaster before he was King and if the Duke of Lancaster had made a Feoffment c. the Feoffee should not hold of him but of the King So if the King himself maketh a Feoffment of Lands of the Dutchy the Feoffee shall hold of the King c. which see in the Dutchy of Lancaster's Case in the end of it And he conceived That notwithstanding the union of the Crown and the Dutchy yet the privity of the Tenure doth remain being preserved by the said Act of 1 H. 4. Another matter was That here the Tenure reserved is Tenend in feodi firma Reddend 10 l. c. And he said that this Rent is not parcel of the Tenure but rather a Rent-charge collateral to the Tenure For in all Cases where there is a Tenure expressed in suit or implied in Law before there Reddendo following shall not make the thing rendred parcel of the Tenure 3 Cro. 210 211. but it shall be a Rent in gross and here Tenend in feodi firma makes the Tenure c. and the Reddendo after shall not make the Rent reserved parcel of the Tenure See the
Statute is recited which needs not and therefore being misrecited made the Indictment insufficient but here the Statute is well recited and therefore as unto that matter the Indictment is sufficient As to the second exception the Iustices were of opinion That the Indictment in that respect Antea 184. was too general and incertain The third exception was not allowed for the latter words i. e. in Putney do refer to the whole and extend as well unto the house as unto the lands But as to these words Lands to the said house belonging See the Case between Partridge and Croker 7 E. 6. 85. where it is good enough because that the number of the acres is set incertain And it was holden by the Court That a Schoolmaster is a good addition for it is a mystery as a Scrivener and afterward the Indictment for the house onely was holden good CCXXXIII Gray a Bencher of the Temple 's Case Mich. 32 Eliz. In the Chancery GRay a Bencher of the Temple's Case was this It was found by Office That one H. was seised in Fee of certain lands called Drayners and Codred alias Codreth in the County of Hertford in his Demesne as of Fee and thereof enfeoffed certain persons unto the use of himself and Anne Capel with whom he afterwards intermarried and of the heirs of their two bodies begotten and of such Estate died seised and farther it was found that the said H. was also seised of other Lands in Barmesden in his Demesne as of Fee and therefore died seised and now came Gray into the Chancery and shewed that the said H. was seised of the said Land called Drayners in his Demesne as of Fee and thereof enfeoffed certain persons unto the use of himself and the said Anne Capel for the term of their lives and afterwards by his Indenture dated the 23. of Decemb. and enrolled bargained and sold the Reversion thereof to the said Gray c. by force whereof c. Absque hoc that he was seised in tail and absque hoc that he thereof died seised in his Demesne as of Fee-tail as it is found by the said Office and for the Land in Barmesden he said that the Lady Judde was seised thereof for the term of her life the Reversion to the said H. in Fee who granted to him the said Reversion in Fee c. absque hoc that he died seised in his Demesne as of Fee c. And upon that the Queen's Attorney joined issue and the Venire facias issued De Cottred Barmesden and the Iury found That H. did not make the Feoffment to the use of himself and Anne his Wife in tail and farther found for Gray in all c. And it was objected here That the same is not a good and lawfull trial For the Land is alledged to be in Codrett and the Venire facias is of Codred c. And although the Venire facias be well awarded as unto Barmesden yet being naught in part it is naught in all which was granted by the whole Court And then a new Venire facias shall issue forth for the whole Another Objection was because he pleads that the Lady Judde was seised of that Land for the term of her life in which Case Gray who is in Reversion ought not to be admitted to this Traverse because that Tenant for life for any thing that is pleaded to the contrary is yet alive and it is clear that none shall be put to his Traverse but the party grieved and here he in the Reversion upon an Estate for life cannot be restored to the possession and by consequence shall not have Traverse See for that 6 H. 7. 15. and 37. Ass 11. c. 2. The seisin in tail ought to be traversed and not the descent or dying seised for if they were seised and disseised and so died the Queen shall have the Ward Coke contrary For Codred and Cottered idem sonant c. And although that it be found by Office that H. was seised of Lands in Codred alias Codreth yet the Defendant supplies the said matter for he saith thus as unto the Land in Codred praedicta which words import that the said Land was known by the one name or the other for this word praedicta is as an Averment which see 33 H. 8. Br. Averm 42. And so here this word praedicta is an Averment that Cottered and Codred are one And if so then the Venire facias is well awarded The Statute of 18 H. 6. gives Traverse to those who find themselves grieved by such Offices or which are put out of their Lands or Tenements and we are within the words of it for upon the whole matter we are out of possession as it was ruled in the Case of one Stukely in the Court of Wards the last Term. If it be found by Office That A. died seised of my Manor and that he held the said Manor of the Queen Now I am out of possession and for that cause the bargain and sale of Dorrel to Sir Francis Walsingham was holden void by the whole Court And 4 H. 6. 12. Traverse is given in lieu of Petition but he in the reversion may have Petition therefore he shall be also admitted to Traverse and this Case may be resembled to the Case of 2 E. 3. 23. where a Praecipe was brought against Tenant for life and he in the Reversion for life prayed to be received It was said by Thorp That is not within the Case of the Statute for he is Tenant onely in the Remainder and it is possible that neither shall have any thing and the Statute speaks onely of Reversion and yet it was awarded That he should be received otherwise great prejudice would follow And here we are at prejudice for now by reason of this Office we cannot have our Action of Waste Also here we need not to Traverse the dying seised in tail but it is sufficient to Traverse the gift in tail for if there be not a gift in tail it is not possible that he should die seised in tail which see 2 E. 4. 15. by Laicon Gawdy Iustice conceived that the trial is not good for the Venire facias is not from the place where the Land is and this word praedicta doth not amount to an Averment and the Case cited before is but the opinion of Brook. Wray said That as to the first exception that it was good enough for both the names idem sonant and as to the Office by that the Queen hath gained possession so as he who traverseth cannot have an Action of Waste and so he is prejudiced by the Office c. CCXXXIV Perchall 's Case Mich. 32 Eliz. In the King's-Bench PErchall was Indicted upon the Statute of 5 E. 6. cap. 4. for drawing of his Dagger in the Church against J. S. without saying That he drawed it to the intent to stick the Plaintiff and therefore the Indictment was holden void as to the
a stranger abateth after the death of the Devisor and dieth seised the same shall take away the descent CCXL The Case of the Town of Leicester for Toll Trin. 28 Eliz. In the King's-Bench 2 Inst AN Action of Trespass Tam pro Domina Regina quam pro seipso and shewed That the Town of Leicester is an ancient Town and ancient Demesne and the Inhabitants there have used to be discharged of Toll and that the Queen by her Letters Patents gave command to all Bailiffs Sheriffs Mayors c. That those of Leicester should be discharged of Toll and notwithstanding that That the Defendant took Toll c. Exception was taken because that the suit was prosecuted Tam pro Domina Regina quam pro seipso whereas the party grieved was onely to have the information See the Case 49 E. 36. Where the Writ is ad respondend tam pro nobis quam c. and no exception is taken to it Another exception The Plaintiff declares That Leicester is an ancient Town and ancient Demesne and doth not shew that it is parcel of a Manor See 20 E. 3. Ancient Demes 25. such exception is taken but after the Defendant pleads That all such Towns whereof the Land in question is parcell is ancient Demesne and such plea was holden good See 30 E. 3. 12. parcell of a Manor which is ancient Demesne and the Plaintiff replied Absque hoc that it is parcell of the Manor Another exception That Lands holden in Socage onely and no other ought to be discharged of Toll and here it is not shewed in the Declaration that the place where c. is holden in Socage To which it was answered That the same needs not to be set down in the Declaration for that is implied in these words Ancient Demesn for otherwise it cannot be but Socage Land onely and of no other Tenure A fourth Exception The Letters Patents here shewed in discharge are of no value for the King by his Letters Patents cannot disinherit any one Erg. nor discharge one of Toll wich is a kind of disinheritance To which it was said That the Plaintiff doth not declare of any Grant but of an usage or custome for those of ancient Demesn and farther hath commanded by the said Letters Patents that such customs and usages should hold place and upon the custome and the contempt this Action is grounded A fifth exception because the Plaintiff hath not shewed that the Toll whereof the Plaintiff hath counted was concerning things for provision for their houses manurance of their lands c. 7 H. 4. 111. In an Action upon the Case for not paying of Toll The Defendant said That he held certain lands of R. Lord of the Manor of H. which Manor is ancient Demesn of which Manor all the Tenants have been free to sell or buy beasts or other things for the manurance of their lands and maintenance of their houses without paying Toll in any Market or Fair c. And so justifies that he came to the same Market and bought certain beasts as the Plaintiff had declared and that some of them he used about his manurance of his lands and some of them he put into pasture to make them fat and more fit to be sold and afterwards he sold them at such a Fair c. and the opinion of the Court was with the Defendant And by Godfrey and Coke Such Tenants shall be discharged of Toll not onely for buying of things which concern their sustenance provision and manurance of their lands but also for all things bought as common merchandizes 28 Ass ult by Thorp Green and Seton of all things bought by any for his own use they shall be quit of Toll and then If the privilege of Tenants in ancient Demesn shall not be quit of Toll but for things bought for their sustenance provision and manurance of their lands they have no more favor than ordinary Subjects See 19 H. 6.66 Some are of opinion That such Tenants shall not pay Toll for things sold and bought coming upon their lands and touching their sustenance See F. N. B. 228. D. such Tenants are discharged of Toll for all things by them sold and bought by way of merchandize as also of things of necessity as sustenance And see Crook in the cases of Itiner 138. he conceives that such Tenants for merchandizes shall pay Toll as other merchants but see the Writ of F. N. B. 228. the words are De bonis rebus suis And Coke said That he had found the reason wherefore such Tenants should be quit of Toll throughout the Realm in an ancient Reading viz. That all the lands in the hands of Edw. the Confessor and Wil. the Conqueror set down in the Book of Doomsday were ancient Demesn and so called Terrae Regis and they were to provide victuals for the Kings Garrisons for then they were troublsome times and for those causes and because they made provisions for others they had many privileges amongst which this one Ut quietius aratra sua exercerent terram excolerent The Lord himself in ancient Demesn shall not have such privilege for his Seignory is pleadable at the Common Law Vid. F. N. B. 228. B. And he said That the Plaintiff ought to alledge that his lands are parcel of such a Manor for there cannot be ancient Demesn if there be not a Court and Suitors c. And he granted that such a Town might be ancient Demesn of the Crown but yet they shall not have the privileges and liberties which the Tenants in ancient Demesn have Towns were before Manors London hath the name of ancient Demesn and yet they have not such liberties nor the lands in it pleadable by Writ of right Close 7 H. 6. 31 32. Shute Iustice was of opinion That an Inhabitant within ancient Demesn although he be not Tenant shall have the privileges See for that F. N. B. 228. B. Tenants at will in ancient Demesn shall be discharged of Toll as well as Tenants of the Freehold for life or for years 37 H. 6. 27. by Moile London is ancient Demesn for they prescribe that a Villein who hath there dwelt c. shall not be taken from thence by Capias or Attachment Billing London is not in the Book of Doomsday Moile They make their Protestation in a Writ of Right Patent Littleton That is used in divers places and at this day in Exeter And by Clench If a Tenant in ancient Demesn levyeth a Fine of his lands then he shall not have the privilege untill the Fine be reversed Quod fuit concessum If the Lord of a Manor in ancient Demesn purchaseth all the Tenancies the whole privilege is gone which Coke denyed The Case was adjorned CCXLI. Lennard 's Case Trin. 28 Eliz. In the Common Pleas. 2 Roll. 787. 3 Len. 128. IN the Case of Lennard Custos Brevium who was Plaintiff in an Action of Trespass for breaking of his Close The Defendant pleaded
such a pasture but so many beasts that such a prescription is a void prescription It was argued on the other side That the owner of the soil hath not the true property of the Conies in him but a kind of property And see F.N. B. 86 and 87. Quare clausum fregit 20 Cuniculos cepit Against a stranger he may have an Action but not against the commoner because he hath wrong in his common by the feeding of the Conies there for although he hath not an interest in the soil yet he hath an interest in the profits of it and a commoner may distrain the beasts of him who hath not right of common for damage-feasance as the books are 4 H. 7. 3. 15 H. 7. 15. and there the commoner hath not any remedy if he cannot enter and kill the Conies for he cannot take them damage-feasance nor can impound them for no Replevin lyeth of them if the owner of the soil ploweth the lands yet the commoner may put in his cattel claiming his common and he may well justifie the same because the wrong beginneth in the owner of the soil At another day the Case was moved again and then it was argued by Coke and he said The point is Whether a commoner having common of pasture may kill the Conies which are upon the ground and he argued That he might not And first he said It is to be considered what interest he who hath the Freehold may have in such things as are Ferae naturae and then what authority a commoner hath in the ground in which he hath common As to the first point he said That although such beasts are Ferae naturae yet they are reduced to such a property when they are in my ground by reason of my possession which I then have of them that I may have an Action of trespass against him who taketh them away as in the book in 42 E. 3. If one hath Deer in his Park and another taketh them away he may have an Action of Trespass for the taking of them See 12 H. 8. If a Keeper or Forrester follow a Buck which is chase out of the Park or Forrest although he who hunteth him killeth the Buck in his own ground yet the Keeper or Forrester may enter into his ground and seize the Deer because the property and possession of the Deer is yet in them by their persuit In 7 H. 6. It is holden That if a wild beast doth go out of the Park the owner of the soil hath lost his property in it but upon the said book it may be well collected that whilest it remains in the Parke That the owner of the Park hath property in it for 18 E. 4. 14. It is doubted whether a man can have property in such things which are Ferae naturae But in 10 H. 7. 6. it is holden That an action of Accompt lyeth for things which are Ferae naturae and see 14 H. 8. 1. In the Bishop of London's Case and 22 H. 6. 59. That as long as such things are in the parties ground they are in his possession and he hath a property in them and in an Action brought for them The Writ shall be Quare damas suas cepit by Newton And see in the Register fol. 102. where an Action was brought Quare ducent Cuniculos suos pretii c. cepit It hath been objected on the other side That the Defendant hath common there To that I answer Admit he hath common yet he hath not an interest in the soil for he cannot meddle with the wood grass or other profit arising of the soil but the interest which the commoner hath is onely the feeding of the grass with â—he mouths of his cattel and if he who hath the Freehold in the ground doth bring an Action against the commoner for entring into his land If the Defendant pleads Not guilty he cannot give evidence that he hath common there for such evidence will not maintain the issue See 22 Ass A commoner cannot take in the cattel of a stranger to agist upon the common and therewith agreeth the book of 12 H. 8. and so it hath been adjudged in this Court. Godfrey contrary And he argued That it is lawfull for the commoner to kill the Conies feeding in the common And he agreed all the cases which were put by Coke and farther he said That the owner of the ground had not an absolute but a kind of a qualified property in the Conies and therefore see the Book of 3 H. 6. and F.N. B. If a Writ of Trespass be brought Quare Cuniculas suas cepit the Writ shall abate and yet he hath a kind of property or a possession rather in them I grant that against a stranger the Plaintiff might have his Action for killing of his Conies but not against the commoner because the commoner hath a wrong done unto him by the Conies eating of his common and therefore he may kill them and although the commoner may not meddle with the land because he hath not an interest in it yet in some cases he may meddle with the profits of it and he may distrain the cattel of a stranger there damage-feasance as the Book is in 15 H. 7. I grant that it is not lawfull for Tenant for life to kill the Conies of him who hath free-warren in the land For if a man bringeth an Action of Trespass Quare warrenam suam intravit Cuniculos suos cepit It is no Plea for the Defendant to say That it is his Freehold See 43. E. 3. accordingly In L. 5 E. 4. In Trespass Quare clausum fregit Cuniculos suos cepit The Defendant said That the Plaintiff made a Lease at will to J. S. of the land and that he as servant to the said J. S. did kill the Conies there and it was holden a good Plea and yet it is there said That by the grant of the land the Conies do not pass but the reason of the book might be as I conceive because the feeding on the land with the Conies is to his damage and therefore that he might justifie the killing of them and so are the Books of 2 H. 7. and 4 E. 4. If I have common of pasture in lands and the Tenant ploweth up the land I shall have an action upon the Case in the nature of a Quod permittat And in 9 E. 4. If one hath lands adjoyning to my land and levyeth a Nusance I may enter upon the land and abate the Nusance So if a man taketh my goods and carrieth them unto his own lands I may enter therein and seize my goods So if a Tenant of the Freehold plows the land and soweth it with corn the commoner may put in his cattel and therewith eat the corn growing upon the land So if a man do falsly imprison me and put me in his house I may justifie the breaking open of his house to get forth In 21 H.
discharge is onely material As in debt for arrearages of Rent reserved on a Lease for years if the time and place of the making of the Lease be not set forth in the Declaration the Declaration is not good But if the Defendant plead a collateral matter as release of the arrearages or other such matter now all the imperfections of the Declaration are waved c. At another day the matter was argued again There are three manner of considerations upon which an Assumpsit may be grounded 1 A debt precedent 2 Where he to whom such a promise is made is damnified by doing any thing or spends his labour at the instance of the Promiser although no benefit cometh to the Promiser As I agree with a Surgeon to cure a poor man who is a stranger unto me of a sore who doth it accordingly he shall have an Action 3 Or there is a present consideration c. The first Exception was because the Assumpsit being laid to procure such a Lease which another had i. e. one A. it is not shewed in the Declaration in facto That A. had such a Lease and if he had not any such Lease then there cannot be any consideration to procure it For Ex nihilo nihil fit Secondly the Declaration is That A. was possessed of a Lease for years to be ended and determined in An. 1606. without shewing any beginning of it and although that Lease be but matter of Conveyance and inducement yet because it is the ground of the Action it ought to be certainly and sufficiently set forth Thirdly the Lease to be procured is laid to be made by a College in Cambridge and it is not shewed for what term of years i. e. for 21 years or under for if it be above then such Lease is void Fourthly It is not laid in the Declaration that the Lease was by writing and then void for a College cannot make a Lease without writing and it shall be intended it was made without Deed because it is not laid to be by Deed As if a Corporation makes a Lease for life and afterwards granteth the Reversion for years he that will entitle himself to the said Reversion ought to say in pleading That he made the Lease for life by Deed although the Lease for life in such case be but matter of Conveyance Fifthly It is not laid in the Declaration That the Lease to be assured was in esse and had continuance at the time it was to be assured for although it be laid to be in esse at the time of the promise yet being a particular interest it shall not be intended to continue if it be not specially shewed As 10 H. 7. 26. Sixthly Here the Plaintiff hath not cause of Action but Palmer for the Assumpsit upon which the Action is grounded the money is to be payable to Palmer not to the Plaintiff 2 E. 4. 5. My Bailiff lets my Land to Farm rendring Rent he shall not have an Action for the Rent but I my self in whose right he leased 25 Eliz. It was the Case of one Crewe I promised unto J. S. 25 Eliz. Crew 's Case That in consideration that he will make unto me a Lease for years of such Lands I will assign the same to his servant If he will not make the Lease not J. S. but his servant shall have Action upon the promise and although the Defendant hath pleaded collateral matter by which the promise is confessed yet the same doth not amend the matter for if the Declaration be insufficient the Court ex Officio ought to stay Iudgment As 6 H. 7. 10. In trespass the Defendant pleads That there was an Accord betwixt them that in satisfaction of the said Trespass he should pay to the Plaintiff such a sum and make two Windows the which sum he had paid before the day without speaking any thing of the Windows The Plaintiff pleaded No such Accord and it was found for the Plaintiff and although the Plaintiff doth admit the Plea as good yet the Court ex Officio shall stay the Iudgment See the Book of Entries 4. A Carpenter brought an Action upon the Case and declared generally upon the Assumpsit Pro diversis rebus vocat Carpenters wares pro diversis laboribus per querent at the instance of the Defendant in arte lignaria c. and holden good without any particulars It was adjourned CCLVI. Payne 's Case Mich. 29 Eliz. In the Exchequer-Chamber A Writ of Error was brought by Payne 3 Len. 144. Treasurer of the Records of the King's-Bench in the Exchequer-Chamber upon a Iudgment given in the Court of Exchequer upon an assignment of a Lease for years by the Earl of Oxford to the Queen One Error is assigned That whereas the issue was joined upon intrusion in taking of the profits and so two matters put in issue The Iury have found Payne guilty of intrusion but have said nothing of the taking of the profits and so the verdict doth not fully meet with the issue But the great matter of the Ease was upon this point The Information is That the Assignment to the Queen was 16 Maii the Intrusion 17 Maii the Inrollment of the Deed of Assignment the 18. of May. So it appeareth upon the Record That the intrusion is supposed to be done before the Queen have any interest in the Lands in which the intrusion is supposed for nothing was in the Queen before the Inrollment For the Queen is a Corporation of State of such prerogative and excellency that she cannot give or take interest in any Lands without matter of Record and this Lease is a Chattel Real and interest in Lands See as to the Inrollment 1 H. 7. 30 31. 5 E. 4. 7. 7 E. 4. 16. But I grant that if the Lessee for years be outlawed the Lease shall be in the King without Office for the Outlawry it self is a sufficient Record to entitle the King to it If the Queen makes a Lease for years of Land rendring Rent with clause That if the Rent be behind that the Lease shall cease if the Rent be not paid it was agreed here in Sir Moile Finche's Case Sir Moile Finches Case That the Lessee continuing his possession shall not be accounted an intruder before Office thereof found but he shall be accountant to the Queen for the profits as Bailiff of his own wrong But here we are charged with intrusion It hath been doubted if personal things be in the King without Office 37 H. 6. but now it is clear that it is as 35 E. 3. Br. Praerogat 113. The Villain of the the King purchaseth goods the property thereof is in the King without seisure and so of all personal Chattels because transitory 1 H. 7. 17. 4 H. 7. 1. 39 H. 6. 26. And here it appeareth upon Record that this Deed of Assignment was delivered to Baron Clark the 16 of May at Westminster and to that we say That the
in which was parcel demised and demiseable according to the custome of the said Manor by Copy in Fee whereof Langley was a Copiholder in Fee c. and the said Earl so seised enfeoffed divers persons of the said Manor unto the use of himself for life and afterwards to the use of the Lord Lumley and Elizabeth his wife daughter of the said Earl and the heirs of their two bodies begotten who made a Lease of the said Customary lands by Indenture unto the Plaintiff for 100 years and the question was If by this Lease the lands be so severed from the Manor that the Copihold is extinct Walmesly took exception to the pleading for that Langley pleads That the custome within the Manor is That if any Copiholder seised of Customary lands of the said Manor dieth thereof seised having many sons That the youngest son shall inherit and he sheweth That the Lord of the said Manor granted to his father and his mother the said customary lands by Copy to have to his said father and mother and the heirs of his father c. And that his father died and that his mother survived him and died and he as youngest son according to the custome entred and he said That this custome set forth by the Defendant doth not maintain his entry For the custome intendeth but a general and immediate descent upon a Copy made unto a man and to his heirs but such is not the descent here for the wife surviveth during whose life the heir cannot enter nor is there here such Estate in the father of the Defendant unto whom the custome set forth in the Avowry can extend For the custome is alledged Where a Copyholder hath a Copyhold Estate to him and his heirs And here the Title of the Defendant is That a customary Estate was granted to the father and the mother and the heirs of the father so as this Estate is not within the Letter of the custome And to that purpose he cited the Case of Sir John Savage Sir John Savage's Case ante 109. late adjudged Where one entitled himself to a Copihold in this manner That within the Manor there is such a custome that if one taketh to wife any customary Tenant of the said Manor in Fee and hath issue by her he if he over-live such wife should be Tenant by the Curtesie and the Case in truth was That he married a woman who at the time of the marriage had not any Copihold but afterwards during the coverture a Copihold descended to her In that Case it was holden That no Tenancy by the Curtesie did accrue by that custome which did not extend but where the wife is a Copiholder at the marriage and a custome shall be in construction taken strictly and shall not be extended beyond the words of it And as to the matter in Law he said That by this Lease the custome was gone and then by consequence the customary Tenancy as to that land is determined for the Estate of the Copiholder is Secundum consuetudinem Manerii ad voluntatem Dom. And now by the Lease Langley cannot hold Secundum consuetudinem Manerii for now the services reserved upon the Copy and the advantages of Waste and other forfeitures are extinct so that if notwithstanding the Lease the customary interest should endure then such a Copiholder should hold this land discharged of all services c. in better Estate than any Freeholder at the Common Law and because the services in Law are discharge and cannot be recovered for that cause the customary interest is determined For the Case is 7 E. 4. 19. by Danby That the Copiholder shall have remedy against his Lord if he put him out for he payes a Fine when he enters but here during this Lease no Fine can be paid upon any descent c. and the Fine is the cause for which the Copiholder shall maintain his possession against the Lord But here no descent or surrender can be presented for there is not any Tenant who can do it See 21 E. 4. 80. by Brian As long as the Copiholder payeth unto the Lord the customs and services If the Lord putteth him out he shall have an Action of Trespass 42 E. 3. 25. If the Copiholder will not do his services the Lord shall seize the lands Dyer 100. 1 Cro. 35. And he resembled this Case to the case where the King grants lands probis hominibus de D. the same is a good Grant and that onely in respect of the Rent and for the reason of that it is a good Corporation But if the King releaseth the Rent the Corporation is dissolved and the Grant is become void Fenner Serjeant contrary and he said That by this Lease being the act of the Lord himself the customary interest is not determined c. And the whole Court was of clear opinion with Fenner That the Copihold did remain for otherwise by such practices of the Lords all the Copiholders in England might be defeated and if any prejudice be grown to the Lord by this act it is of his own doing and against his own act he shall not be relieved And by Periam Iustice The Lord by his act i. e. the making of the Lease hath destroyed his Seignory and lost the services as to this land And Windham Iustice said That the Lord himself had destroyed the custome as to the services but not as to the customary interest of the Tenant but the Lord Anderson was of opinion That the Rents and services do remain and if the Copiholder after such Lease committeth Waste that it is a forfeiture to the Lord and that will fall in evidence upon a trial although such Waste cannot be found by an ordinary presentment and the same Law which alloweth the Copiholder his Copihold interest against this Lease will allow unto the Lord his Rents and services and he said That the Lord shall have the Rents and services and not the Lessee Quod mirum against his own Lease See 33 Eliz. between Murrel and Smith now reported by the Lord Coke in his 4 Report fol. 20. CCLVIII. Russel and Broker 's Case Trin. 29 Eliz. In the Common Pleas. RUssel brought Trespass against Broker 3 Len. 218. for cutting down of four Oakes The Defendant pleaded That the place where c. and that he is seised of a Messuage in D. And that he and all those whose Estate he hath c. Habere consuerunt rationabile estoverium suum for fuel ad libitum suum capiendum in boscis subboscis arboribus ibidem crescentibus and that in quolibet tempore anni but in fawning time The Plaintiff by Replication said That the place where is within the Forrest of c. and that the Defendant and all those whose Estate c. Habere consueverunt rationabile estoverium suum de boscis c. per liberationem Forrestarii vel ejus Deputati prout boscus pati potest non ad exigentiam
as taken for Rent arrere yet he cannot be said his Bailiff at the time of the distress which was granted by Rhodes Periam and Windham and as to that which hath been objected That if this traverse be allowed the meaning of the party shall be drawn in question i. e. the meaning of him who took the cattel the same is not any mischief for so it is in other cases as in the case of Recaption See 9 H. 6. 1. 45 E. 3 4. CCLXXV Humphreston 's Case Pasch 16 Eliz. In the King 's Bench. More 103. 1 Anders 40. Dyer 337. Owen 64. Sty 293. IN an Ejectione firmae It was found by special Verdict That W. Humphreston seised of the Manor of Humphreston suffered a common Recovery to be had thereof by Kinnersley and Fowk in the Writ of Entry in the Post to the intent that they should make an Estate to the said W. Humphreston and Elionar his wife for their lives the remainder Seniori puero dicti W. and to the heirs of the body dicti senioris pueri legitime procreat the remainder to the heirs of the body of the said W. Humphreston with divers remainders over And afterwards the Recoverers in December following by Indenture made an Estate accordingly and made Livery to W. Humphreston and his wife and afterwards in November 2 E. 6. by Indenture between the said W. Humphreston of the one party and Kinnersley on the other part The said W. Humphreston did covenant with the said Kinnersley to do all such lawfull and reasonable things for to assure the said lands unto the use of the said W. Humphreston and Elionar his wife for their lives and afterwards to the use of the eldest child of the body of the said W. Humphreston lawfully begotten and to the heirs of the body of the said eldest child of the body of the said W. Humphreston and after to divers other uses over and afterwards Ter. Pasch 2 E. 6. W. Humphreston and Elionar his wife levyed a Fine of the said land to C. and B. in Fee to the use of the said Indenture Elionar died W. Humphreston married another wife and had issue a daughter named Frances and afterwards had issue a son named William and died William the son being of the age of six years entred into the lands and leased the same to the Plaintiff for years who being ejected by the Defendant brought the Ejectione firmae And this special Verdict And the points moved upon it were argued by Atkins Phetiplace Fenner Fleetwood Plowden and Bromley and afterwards this Case was argued by the Iustices And Gawdy puisne Iustice conceived That Iudgment ought to be given for the Plaintiff First he conceived that this Lease for years made by the Infant without Deed and without Rent reserved is not void so as every stranger shall take advantage of it but onely voidable for an Infant may make a Bond and a Contract for his commodity and profit and the same shall bind him as for his meat and drink apparel c. But if upon such Lease he had reserved a small Rent as one peny where the land was worth 100 l. per ann such a Lease had been void and in our Case this Lease was made upon the land and was made for to try the title to it which is a good consideration and to the profit of the Infant and for his advancement and then the Lease is not void It hath been objected That here the Recovery being suffered to the intent that the Recoverers should make an Estate ut supra c. that the use shall rise presently upon the Recovery to him who suffered the Recovery and then the Recoverers could not make Livery unto him he held strongly That the use and the possession should be adjudged in the Recoverers untill they made the Estates c. for they otherwise could not make the Estates c. 2 Roll 789. and these words To the intent shall be construed that they shall have the lands untill they made the Estates c. And he held that the remainder limited Seniori puero where there is not any in rerum natura is good enough as a remainder limited to him who shall first come to Pauls And he conceived that the son should take this remainder and not the daughter and he conceived that the Estate tail here was not executed i. e. the second intail Divers Authors of Grammer have been produced to prove that Puer may be taken both ways Tam puer quam puella Desporterius Calapine Melancthon and the Grammer allowed but I conceive that Puer is a word proper for a Boy and Puella for a Maid and where we have proper words we ought not to iudge but according to them and because the word is doubtfull we ought to consider the cause upon the circumstances and therefore it is to be intended that W. Humphreston had a greater desire that his son should have his Inheritance than his daughter if there be not some special matter to prove that the intent of the father was for his daughter Southcote Iustice agreed with Gawdy in the first point and also that the Recoverers have convenient time to make the Estates and that they are to make the same without request for the benefit of the wife who is a stranger to it and is to have the lands for her ioynture and he cited the Case of the Abbat of York 44 E. 3. 8. and 9. where the difference is taken between a Feoffment made upon condition to re-enfeoff the Feoffor or to enfeoff a stranger And here in our Case the Feoffment is made in convenient time and here is sufficient consideration That the Recoverers shall be seised to their own uses untill c. And these words Roll supra Roll 407. Ea intentione shall be taken for a Condition And also that this remainder limited Seniori puero is good notwithstanding that there be not any Senior puer alive at the time And as to the word puer he held that it did extend to both Sexes indifferently and because it is doubtfull what Sex the father intended we are to construe the same upon the circumstances which appear upon the parts of the Indentures and here it appeareth upon the Indenture that he hath explained his mind scil Eldest child be it Male or Female As if I have two sons named J. and I devise my lands or limit a remainder to J. my son the Law shall construe this Devise to extend to my younger son for without devise or limitation my eldest son should have it But if J. S. hath two sons known by the names of A. and I Devise lands to A. son of J.S. there I ought to explain my meaning openly And he conceived That the Estate tail is executed defeasiable in W. Humphreston upon issue afterwards had and that the daughter should have the lands and not the son and if the Fine destroy the remainder in abeyance limited
indictment and prayed his Clergy c. and demanded Iudgment If the Plaintiff should have this appeal The Plaintiff Replicando said by protestation Nul tiel record and for plea did demur in Law. Dalton for the Plaintiff took Exception to the plea for the conclusion of it viz. Iudgment if appeal where it ought to be Iudgment if he shall be again put to answer And he took a difference where a matter is pleaded against the Plaintiff to which the Plaintiff is party As where a man pleads a Fine levied by the Plaintiff himself there he shall conclude Iudgment if action but where the Fine is pleaded levied by the Ancestors of the Plaintiff there he shall plead Iudgment if against such Fine c. Vide 9 H. 7. 19. At the common Law before the Statute of 3 H. 7. such conviction at the suit of the King did discharge the party convicted from farther trouble but if the indictment upon which he was arraigned be insufficient then it is not any plea. And here the indictment is insufficient for by the Statute of Articuli super Chartas cap. 3. the Coroner of the County together with the Coroner of the King's Houshold shall do the Office which belongs to it and send the roll to which Office two Coroners are requisite but here in the taking of this inquisition there was but one person although two capacities id est Coroner of the County and also Coroner of the Verge and so the indictment was taken Coram non Judice See the Statute of the Star-Chamber which is That the Chancellor c. calling to them one Bishop and one temporal Lord of the King's Council c. If the Chancellor be a Bishop yet another Bishop ought to be called c. If I devise that my lands shall be sold by two Bishops and J. S. hath two Bishopricks yet his sale is not sufficient Egerton contrary Although here is but one person yet there are two Coroners Quando duo jura concurrunt in una persona aequum est ac si essent in diversis At the common Law before the Statute De Articulis super Chartas The Coroner of the Verge by himself might enquire of Murther but because the Kings Court oftentimes removed into another County by reason whereof no enquiry could be made for the remedying thereof that Statute was made which is in the affirmative and doth not abridge the common Law before and therefore it shall have a reasonable construction See the Statute of West 1. cap. 10 By which it is enacted that sufficient men shall be chosen Coroners of the most loyal and the most sage Knights this Statute shall not be taken Stricto sensu that none shall be chosen Coroners but Knights but the Statute requires that sufficient persons shall be chosen As to the Statute of 3 H. 7. It is to be known That the common Law before acquitted was a good Plea and the cause was for the great regard that the common Law had to the life of a man In which case a great mischief as the Statute recites did ensue that to save the appeal of the party they would not arraign the party within the year and day after the murther within which time the offender did compound with the party interessed and so after the year expired all the matter concerning the prosecution at the King's suit was put in oblivion wherefore it was enacted That such offender shall be within the year arraigned at the suit of the King and if the party be acquitted at the Kings suit within the year and day That the Iustices before whom c. should not set the party at large but to remain in prison or to let him to bail untill the year and the day be past and within the said year and day the wife or next heir to the party slain may take their appeal against the party so acquitted or attainted the said acquittal or attainder notwithstanding and he said that these words person attainted did not extend to person convicted for they are two distinct conditions in Law for attainder procures corruption of bloud but the same is not wrought by conviction and every Treason imports in it self Felony but yet notwithstanding they are distinct Offences See 22 E. 4. Coron 44. where it was ordered by all the Iustices of England That none should be arraigned of the death of a man at the suit of the King within the year and day so as the suit of the party be saved And the Iustices counselled all men of Law so to do and that the same be executed as a Law without alteration upon which rule of the Iustices arose an inconvenience for after that order of the Iustices was known The offender would practise with the party to whom the appeal by the Law belonged to obtain from him a release for some sum of money and then when the year and day passed the heinousness of the murther was out of memory This mischief being espied was the occasion of the making of the Statute of 3 H. 7. But the said Statute doth not meet with our Case but our Case is at the common Law for this Statute extends onely unto persons attainted but a person convicted is not touched by it and therefore being out of the words of the Statute it shall be also out of the meaning of it for being a penal Law it shall be taken by equity as all Statutes which give attaint shall be Stricti juris and shall not be taken by equity It hath been objected that the Statute de Frangentibus prisonam 4 E. 1. hath been taken by equity the same is not so for it is not any penal Law but the same mitigates the rigor of the common Law for before that Statute the breaking of the prison was Felony in every case but now it is not Felony but where the party was committed to prison for Felony c. CXCVI. 21 Eliz. In the Common Pleas. IN a Formedon of a Manor Dyer 291. 3 Len. 92. the Tenant pleaded Ioynt-tenancy by Fine with J. S. The Demandant did aver the Tenant sole Tenant as the Writ doth suppose and upon that issue was taken and found for the Demandant upon which a Writ of Error was brought and Error assigned in this That whereupon Ioynt-tenancy pleaded by Fine the Writ ought to abate without any averment by the Demandant against it the averment hath been received against the Law c. Southcote At the common Law If the Tenant had pleaded Ioynt-tenancy by Deed the Writ should abate without any averment but that was remedied by 34 E. 1. but Ioynt-tenancy by Fine did remain as it was at the common Law for he hath punishment enough in that by that plea if it be false he hath by way of conclusion given the moyety of the Land in demand to him with whom he hath pleaded Ioynt-tenancy and the Law doth not intend that he would so slightly depart with his land